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…


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