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Day Three–Witnesses

In Trial Notes on October 29, 2008 at 8:23 pm

Third Witness: Professor Michael Watts

We heard the conclusion of UC Berkeley professor Michael Watts’ testimony. An expert in African development, Prof. Watts spoke at length about the Niger Delta geography and about oil politics in Nigeria since its independence from Britain in 1960.

Watts’ testimony conveyed the delicate balance between freshwater and sea water that is crucial to the flora and fauna–and to the peoples–of the Delta.  Dredging, oil spills, industrial pollution–the legacies of oil production–have undone this balance throughout the Delta states.

Mr. Watts also discussed the series of repressive military regimes which ruled Nigeria until the late 1990s. According to his testimony, the mid-1980s saw Nigeria descend into utter authoritarianism with a violent repression of social movements that eventually led to the 1995 execution of human rights activist Ken Saro Wiwa. Roundly condemned by the United States, the United Nations, and the European Union, Sami Abache’s dictatorship–in power at the time of the Parabe protest–was known to commit extrajudicial assassination and torture.  By inference, Chevron must have known the brutality of the armed forces it was flying out to the Parabe platform.

In cross-examination, counsel for Chevron pursued a rather weak line of questioning, asking Mr. Watts whether he had seen in his research examples of Nigerian youths kidnapping oil industry workers and whether he himself condoned such acts.  Chevron’s attorney also made the insinuation that because the violent repression of which Mr. Watts spoke occurred in River State–two states removed from Ondo–it could not reflect on the armed forces used on Parabe.  That’s a pretty weak inference. Same dictatorship, same federal soldiers, same mobile police.

Chevron’s lawyers had a hard time dismissing Nigeria’s dismal human rights and environmental record, so they leaned on their familiar strategy of vilifying indigenous peoples as pirates and bandits. That was their approach in cross-examining the next witness: Boyo Johnson, a Itsekiri worker who witnessed the Parabe incident.

Fourth Witness: Boyo Johnson

Mr. Boyo (as he is called) received his job on the barge at Parabe following a March 1998 demonstration by the Tsekiri people at the same platform.  It was this event–and its successful outcome–that presumably inspired the Concerned Ilaje Citizens to take a similar action at the Parabe.

As an eyewitness to the Parabe platform occupation in May 1998, Mr. Boyo’s testimony provided a strong counterbalance to Chevron’s efforts to paint the Ilaje protesters as violent pirates and hijackers. According to Mr. Boyo, the Ilaje protesters were unarmed and non-threatening.  At no point did he feel that he was in danger and at no point did he observe the armed guards aboard the barge show any signs of apprehension. Mr. Boyo’s account of the occupation corroborated the plaintiffs’ account set forward in opening arguments. His harrowing description of the attack on the Parabe protesters also matched plaintiffs’ description: by his account, the peaceful protesters were suddenly attacked by the soldiers as the helicopters landed on May 28th.

A potential flaw in Chevron’s strategy might have opened up in their cross-examination. Chevron’s attorney asked whether the captain at Parabe ordered work to stop out of safety concerns–overcrowding, etc. Here they seem to be equivocating with the meaning of ‘safety’. There’s a big difference between stating that the situation was unsafe because of overcrowding (where the danger would originate in the conditions of the worksite) and stating that the situation was unsafe because the protestors themselves were dangerous.

Chevron wants to establish that the platform was unsafe for its workers, thus it was justified in asking the Navy to ‘deal with the situation’. Hopefully plaintiffs’ counsel will be able to point out the fallacy in Chevron’s argument. I’m pretty sure that shooting and torturing protesters wasn’t the best way to address overcrowding on the barge…

The session ended with the first part of Larry Bowoto’s testimony, leading up to his account of the May 28th attack on the Parabe protesters. I will cover all of Mr. Bowoto’s testimony in tomorrow’s post.

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Day Three: Challenges of Rapport Building

In Trial Notes on October 29, 2008 at 8:18 pm

Federal Court House, San Francisco. Impenetrable fog at dawn this morning.

And inside the courtroom, it was a gloomy start for the plaintiffs as well. The previous day’s opening statements for Chevron and their spirited cross-examination of the witnesses had dispelled any thoughts that Larry Bowoto’s legal team would have an easy time of it. Mittlestaedt was, as expected, a total bull dog, and the other attorneys were relentless in attacking the character of the plaintiffs’ witnesses and undermining their version of events.

I agree with the observation made by fellow-blogger Andrew Woods here that plaintiffs’ counsel didn’t sufficiently predict and preempt the defendants’ line of argument. Instead, the plaintiffs relied on emotion; but pathos alone won’t be enough to convince the jury that Chevron should be held accountable for the actions of Nigeria’s armed forces.

This strategy might work in a criminal trial, but here the gap in showing liability is too great: to bridge it, the plaintiffs need to convince the jury that Chevron knowingly hired human rights abusing armed forces to clear the protesters from the Parabe platform. Even if Chevron did not intend to kill anyone, they supplied the means of the killing and had prior knowledge that its paid agents were likely to use violence. According to many legal commentators–here and here—this should meet the threshold for aiding & abetting under international law.

There’s another potential flaw in the plaintiffs’ strategy: the assumption that an American jury will be able sufficiently to empathize with the Nigerian victims. They say it’s a small step from the sublime to the absurd, and any civil litigator should know that between pathos and bathos the step is even smaller. Emotionality can backfire, especially when you factor in the cultural differences that make it difficult to build rapport. Interpreted speech is notoriously flat and the disjunction between an interpreter’s delivery and the victim’s affect can easily throw a jury off. Similarly, body language and ways of grieving are culturally determined. An American just might misinterpret the foreign manners of the Nigerians as insincerity. And against Chevron’s hard-nosed defense, the plaintiffs had better avoid any sense of crocodile tears.

There was a difficult moment in court today when Larry Bowoto broke down on the witness stand. Asked to identify a photograph of Arolika Irowarinunwho was shot to death on the Parabe platform–Mr. Bowoto began sobbing, along with Irowarinum’s three widows seated in the audience. The court was forced to take a five minute recess. Because Americans are generally uncomfortable with public displays of grief, there was palpable discomfort in the room. Certainly, some observers were moved by the scene (this writer included); but I fear that someone with an ounce of doubt about the plaintiffs’ claims could view all this emotion with suspicion.

Chevron will certainly try to play up this angle—insinuating that the plaintiffs are scammers (Nigerian Scammers!!) going after Chevron’s wealth. In so many words, Chevron has already dismissed human rights litigation as international ambulance chasing.

I really hope that plaintiffs counsel will be able to shift strategy to careful construct an aiding and abetting argument against Chevron’s position. We’ll find out over the course of the next few weeks.

Day Two–Witnesses

In Trial Notes on October 28, 2008 at 8:34 pm

 

Prince Philemon Ebiesuwa

Attorneys for the plaintiffs called their first witness–Prince Philemon Ebiesuwa–an Ilaje community leader.  Ebiesuwa testified on the traditional hierarchy of Ilaje society: from youths (aged 18-45), elders, chiefs, baale (community leaders) and the king or Olubo.

He also elaborated on the federated structure of the Nigerian government under the past dictatorships. This fact set is relevant in establishing how community associations such as Concerned Citizens of Ilaje (CIC) gained recognition as a legitimate representative of the Ilaje people.  On this point, the witness noted that Chevron practiced a ‘divide and rule’ strategy in ‘accrediting’ certain community groups as legitimate  negotiating partners and excluding others, specifically the CIC.  This marginalization was one of the key motivating factors in the platform occupation.

Under questioning by counsel for the plaintiffs, Mr. Ebiesuwa spoke at length about his educational and professional background in  geology and oil extraction.  He also testified about the environmental impact  of dredging, gas flares, sea incursion, salination and oil spills on the ecosystem of the Ilaje lands.

State of Mind

Mr. Ebiesuwa’s testimony was interrupted by numerous objections by counsel for Chevron.  What became immediately clear was the defense’s intention to object to any evidence speaking to the environmental degradation of the Niger Delta.

Judge Illston made it explicitly clear to the jury that evidence on the environmental impact could be considered in order to establish the state of mind of the plaintiffs when they carried out their actions on the Parabe barge.  Despite the ruling on admissibility, the defense continued to object–perhaps to cast doubt on the environmental claims in the minds of the jurors.

Possibly the most interesting aspect of Mr. Ebiesuwa’s testimony touched on the content of the letters written by his organization, the CIC, to Chevron in the months before the Parabe incident.  Mr. Ebiesuwa insisted that the letters expressed the CIC peaceful intentions and were merely solicitations to Chevron to negotiate with the group and cease marginalizing them. Unfortunately, those intentions were unclear on first reading of the letters.  Through their questions, counsel tried to defuse  the inflammatory tone of the letters–it remains to be seen how effective they were.

With lines like–“If Chevron fails to heed this advice…it could lead to mass riot,” “Which language do you now understand? Is it violence or sea piracy, war or peace? You are at liberty to choose any of the options mentioned above.”–the CIC’s letters seemed to undermine Mr. Ebiewusa’s assertions.

In cross-examination, counsel for the defendants gleefully leaped on these extracts and on Mr. Ebiewusa’s attempt to explain the harsh tone of the letters by comparing it to a parent telling a child they will get a spanking if they continue their behavior. Chevron’s attorney (name??) kept repeating the questions “Is a mass riot peaceful protest?”  “Did you compare a riot to a spanking?”

Mr. Ebiewusa–whose English was excellent, if at times strained–was at pains to explain that the letter-writers’ intention was to encourage Chevron to negotiate in order to prevent a heightening of tensions. Under counsel’s pointed cross-examination this language may well have taken on a threatening undertone for the jurors.

The cross-examination pushed hard against Mr. Ebiewusa–an effort which I believe was aimed at provoking him to anger.  Maybe Chevron’s attorneys thought that the sight of an angered Nigerian, speaking in a foreign accent and wearing foreign dress would support their effort to paint the Ilaje protesters as ‘violent sea pirates’.

Mr. Ebiewusa and counsel for the plaintiffs managed to end with one poignant rebuttal: Nigeria does indeed have sea pirates, but do pirates submit petitions with the signatures of bishops and pastors? Do pirates conduct book-length scholarly environmental impact assessments and submit them to government officials? 

Professor Michael Watts

The second witness was Michael Watts, a UC Berkeley professor of African Development.  We only heard about 30 minutes of Michael Watts testimony, so I will lump it in with its conclusion in tomorrow’s summary.

Chevron’s Vanishing Google Ad

In Uncategorized on October 28, 2008 at 6:25 pm

In my Resources post from a few days ago, I noted that Chevron had bought a sponsored Google link to their Bowoto factsheet.  As this post from law.com notes, Judge Illston ordered the sponsored link be removed in addition to a general gag order for the counsel and parties in the case.

Well, since my last search, the link has disappeared.

Now, as far as that gag order goes–I have in my notes that Judge Illston also ordered all parties to the trial to refrain from making public statements about the case. She explicitly instructed the lawyers to not give interviews to media or bloggers.

Then why praytell did I just find this statement by Chevron spokesman Don Campbell, recorded after Day One?

A Good Article

In For Further Reading on October 28, 2008 at 4:22 pm

On law.com.

This piece does a nice job laying out some of the pertinent legal issues in the case. Check it out here.

Day Two

In Trial Notes on October 28, 2008 at 4:20 pm

Federal Court, San Francisco, California. Ambient temperature: 18C/64F. Sunny skies, the smell of fallen leaves and the sudden proliferation of pumpkins everywhere you look.

Welcome to day two of the Bowoto v. Chevron trial. It was long, intense session which began with Judge Illston restating the case for the jury and reviewing the rules and sequence of the trial process. We covered a lot of terrain today, so bear with me if this post is long.

Opening Argument for the Plaintiffs: Bowoto et al.

Dan Stormer, lead attorney for the plaintiffs, presented the first opening statement.

Mr. Stormer elaborated the plaintiffs’ argument that Chevron Corporation should be held liable for the shooting deaths, assault and battery and torture of the Ilaje demonstrators who boarded the Parabe offshore oil platform in May 1998.

Stormer attacked on several fronts, starting with a brief history of Nigerian politics since its independence from Britain in 1960. From 1962 to the late 1990s, the country was controlled by a series of military dictatorships. This period also saw a massive development of Nigeria’s vast oil resources, with successive military administrations partnering with Chevron, Shell, and other multinational oil corporations.

Stormer went on to argue that Chevron has enjoyed extensive ties to the Nigerian military governments including that of Sani Abacha, whose rule between the years 1993-1998 was among the most brutal in Nigeria’s history. Abacha was in power when the Parabe protest occurred.

Mr. Stormer then cited a 1998 Chevron report that detailed Chevron’s relationship with the Nigerian government and outlined an agreement under which Chevron paid, housed and fed Nigerian military and naval forces–including the notoriously brutal ‘mobile’ units–in exchange for their security services. According to Mr. Stormer, company records revealed payments made for “special duty” on Parabe platform from May to June 1998.

Stormer also showed the jury an internal July 7, 1997 e-mail from Chevron employee Scott Duke in which he warns that the “mobile police are completely out of control” and suggests that “we should consider using rubber bullets.”

Counsel’s next line of argument addressed the Ilaje people and the environmental degradation of the Niger Delta.  A minority ethnic group living in the underdeveloped Delta watershed, the Ilaje rely on the freshwater environment around their villages for agriculture, fishing, and lumber.  Following the dredging of a canal by Chevron in 1980s, an influx of Atlantic salt water raised the salinity of the freshwater, causing fish kills and heightened soil acidity, and killing off trees and crops. At the same time, oil spills decimated the mangrove forests which sheltered the freshwater zones from the sea, worsening the salinity problems. The Ilaje’s local economy was devastated.

In response, the Ilaje and other Delta peoples formed numerous community organizations to negotiate with Chevron for environmental reparations and employment opportunities.  Earlier in 1998, the Itsekiri people–another Delta ethnic group–boarded and occupied a Chevron platform to demand jobs. Chevron complied with their request.

In contrast to the Itsekiri demonstrators and the other Ilaje community associations, the Concerned Ilaje Citizens–the group of which the plaintiffs were members–looked beyond the narrow issue of obtaining jobs and made demands for broader environmental protection and increased social investment from Chevron. After sending a series of unanswered letters to Chevron and unsuccessfully arranging a meeting, the Concerned Ilaje Citizens undertook what they believed to be a peaceful protest on the Parabe platform.

Mr. Stormer then described in great detail the events that occurred on the platform culminating in Scott Duke’s decision to ask the Nigerian Navy to expel the demonstrators from the platform.  Chevron does not dispute that the Nigerian armed forces were flown to the platform in Chevron helicopters by Chevron pilots, and with direct supervision by Chevron security officials. Nor do they dispute that the military units fired on protesters.  What Chevron does dispute is the intent of the Parabe demonstrators and the liability of Chevron for the steps that it took to deal with the protest. This dispute made up the substance of the defense counsel’s statement.

Opening Argument for the Defendants: Chevron Corp., Chevron USA, Chevron, Chevron Investments Inc.

Robert Mittelstaedt made the opening statement for Chevron. Mr. Mittelstaedt’s argument was a study in contrast to Mr. Stormer’s.

According to Mr. Mittelstadt, the essence of the case was the right and duty of Chevron to protect and secure the lives of its employees. He insisted that the case is explicitly not about Chevron’s environmental impact on the Delta ecosystem and dismissed the plaintiffs’ attempt to use this background material as a smokescreen for the illegal actions of the Ilaje protesters. He made the key assertion that the Ilaje protesters who occupied the platform were “invaders” committing “sea piracy” and hijacking. He asserted that the Concerned Ilaje’s Citizens demands were nothing more than ransom and that their boarding of the platform, tugboat and barge at Parabe were inherently violent acts, not “peaceful protest.” He further noted that other Ilaje community associations had dissociated themselves from the CIC, and that therefore the CIC was not a legitimate representative of the Ilaje people with whom Chevron could negotiate.

According to Mr. Mittelstadt, Chevron took the only legitimate actions available to it: it contacted the relevant law enforcement officials, in this case the Navy, and asked them to intervene to secure their property and their employees.  Mr. Mittelstadt claimed that the events that followed were unfortunate, but that they were exclusively the responsibility of the Nigerian Navy and police.

At this point, counsel for the defendants tip-toed into what I would consider dangerous territory.  Mr Mittelstadt made the claim that yes, Chevron paid the military forces to clear Parabe, but that this type of payment is just the way business is conducted in parts of Africa (I’m paraphrasing). He claimed that these payments in no way made the security forces employees or agents of Chevron.

Not only is this distinction lost on me, but it seems to rest on what we might call the “Heart of Darkness defense”.  Chevron seems to be arguing that international standards do not apply to business conducted in the Niger Delta, and that a certain degree of brutality and bribery is part and parcel of doing business in Africa.

For this observer, this point strikes to the heart of the case.  At issue is not Chevron’s right to protect its employees, nor is it the demonstrators’ motives in occupying the platform: what is at issue is whether Chevron’s decision to fly in hired guns from the Nigerian armed forces–with a reputation for human rights violations–was a tortious act. No one is disputing Chevron’s right to security: Mittlestaedt’s main assertion is a straw man. The plaintiffs only accuse Chevron of using illegal means to obtain that security and of abetting the criminal conduct of the military.

Did Chevron commit a tort by violating international law when it flew Nigerian military units onto the Parabe platform? That is the question that the jury must determine.

In the next post, I’ll go over the witness testimony from day two of the trial…

Chimène Keitner on Bowoto v. Chevron

In For Further Reading on October 28, 2008 at 5:42 am

A great post on IntLawGrrrls by UC Hastings professor Chimène Keitner here.  And a link to the abstract for her paper Conceptualizing Complicity in Alien Tort Cases in the Hastings Law Journal. 

Alright, off to downtown now…

Day One

In Trial Notes on October 27, 2008 at 3:52 pm

Federal Court House, San Francisco. Grey skies and a crisp autumn wind for the first day of trial. 

Opening Motions

The session began with Judge Illston hearing motions from counsel.

Chevron’s recent advertising campaign was a major issue: Chevron’s “Human Energy” slogan has been popping up on coffee-cup sleeves and billboards throughout the country, and certainly around the Bay Area. Attorneys for the plaintiff asked the court to enjoin Chevron from buying advertising that could have a prejudicial effect on the case.

There’s a bit of a logical leap though—the ads in question refer to energy conservation and alternative fuel, so it isn’t obvious how they bear directly on the case at hand.

However, a second Chevron ad did draw censure: Chevron has sponsored links on Google and Yahoo so that their fact sheet is the first hit in related searches of “Bowoto v. Chevron.” Counsel for the defense argued that the sponsored links were an attempt by Chevron to ‘even the playing field’, since 9 out the 10 first hits were for sites supporting the plaintiffs. Of those 10 links, only Chevron’s was sponsored.

Judge Illston ordered Chevron to take down the sponsored link, and–at the behest of the defense–ordered all attorneys to refrain from making public statements and from appearing at rallies or demonstrations. She did not address the matter of Chevron’s advertising campaign in San Francisco, although the issue did come up during voir dire.

Statement of the Case

Judge Illston then read  statements of the case from both sides.

The plaintiffs reiterated their account of the incident on Parabe platform–the four plaintiffs were among a peaceful group of villagers demonstrating for negotiations over environmental degradation and jobs, when Nigerian armed forces in Chevron’s pay attacked the unarmed demonstrators.

The defense stated that the Ilaje villagers had taken the platform workers hostage and demanding money from Chevron and that Chevron had the duty and right to notify Nigerian authorities, secure the safety of their workers and transport security to the site. Defense also maintained that the Nigerian security forces acted within reason on the platform, and that Chevron cannot be liable for any abuses occurring during the plaintiffs’ detention following the incident.

The plaintiffs insisted that Chevron was liable for the conduct of the security forces, since they were acting as the hired agents of Chevron Nigeria.

The defense claimed that neither Chevron Nigeria, nor the defendants–Chevron Corporation, Chevron Investment Inc., Chevron USA, Inc.–were liable since the security forces were acting as legitimate law enforcement agents, and because Chevron Nigeria intended a peaceful resolution to the incident.  

Voir Dire

The rest of the day was spent on jury selection.

Further motions

Once a jury was seated, counsel offered another round of motions before tomorrow’s opening statements.

The plaintiffs sought to exclude mention of events occurring after the incidents of May 28th, 1998. Judge Illston ruled that neither side may discuss post-incident events in their opening statements without permission of the court.

This decision prompted an extended debate on what exactly were the time parameters of the events.  The plaintiffs insist that the “incident” refer to the tortious conduct inflicted on the four men: the Parabe platform shootings and the subsequent detention and abuse. 

The defense argued that the incident should consist of the entire planned sequence of events. Defense seemed to score one point in noting that the plaintiffs included in their time-frame a prolonged 30-day detention, which would seem to cancel out the argument that the relevant events ended with the shooting.

Judge Illston ruled that the discussion of ‘post-incident’ events would only be permitted at her discretion.

Tomorrow, we’ll hear opening arguments.

 

 

 

Documents from EarthRights International

In Documents Aggregator on October 26, 2008 at 7:31 pm

Legal Documents

Opening Brief in Support of Current Federal Complaint

Amended Federal Complaint

Transcript of Oral Argument on Chevron\’s Motion for Dismissal Based on Forum Non Conveniens

Federal Court – 2007 Opinion on Aiding and Abetting Liability

Federal Court – 2007 Opinion on the Act of State Doctrine

Decision Denying Chevron\’s Motion for Summary Judgement

Evidence from the Case

\”The Marginalisation of the Ilajes\”: What the Protestors Were Asking For

Chevron Memo of May 26, 1998: \”The Youths Have Thus Far Been Peaceful\”

Chevron Memo of May 27, 1998: \”The Villagers Were Unarmed and the Situation Has Remained Calm\”

Autopsies of Those Killed on May 28, 1998: Four Shots to the Back, Three Shots to the Side

Some References

In Preliminaries on October 26, 2008 at 5:13 pm

The lion’s share of information on this decade-long case is available on the following sites:


“The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.”

Pages on Bowoto v. Chevron here and here.

“ERI is a 501(c)(3) nonprofit group of activists, organizers, and lawyers with expertise in human rights, the environment, and corporate and government accountability. ERI has offices in the U.S. and Southeast Asia.”

Pages on Bowoto v. Chevron here.

“Justice in Nigeria Now (JINN) is a San Francisco-based organization working in solidarity with communities in Nigeria and allies in the U.S. to hold multinational corporations accountable for their operations in Nigeria to act in a manner that respects human rights, protects and cleans up the environment, and enhances community livelihoods.”

Pages on Bowoto v. Chevron here.

And of course…

(who has helpfully “sponsored” links to their site on Google searches of “Bowoto” “Bowoto v. Chevron” and “Bowoto EarthRights”)

Pages on Bowoto v. Chevron here.