The Banality of Corporate Evil

Were it not a matter of life and death, it would be amusing to watch the Supreme Court contort itself – and the Constitution – in slavish fealty to Corporate America.

In June, the Court’s Republican majority is expected to rule that, under international law, corporations are not people. And as such they cannot be held responsible for their complicity in the gross abuse of human rights.

On February 28, the Court heard arguments in Kiobel v. Royal Dutch Petroleum. The case is brought by 12 Nigerians granted political asylum in the United States. All are Ogoni, an indigenous people who live in the Niger River delta, where Shell discovered oil in 1958.

In the early ​’90s, the Ogoni began protesting the environmental devastation of their lands at the hands of Shell. In response, Nigeria’s military junta sent in troops and an estimated 2,000 Ogoni were killed. Charles Wiwa, one of the 12 now suing Shell, says that after he led a demonstration in his town, soldiers seized him and for two hours tortured him before a crowd of thousands. ​“They started beating me – horsewhipping me, clubbing me, [kicking me with their] boots,” he said in a deposition.

Shell maintains it has no connection to these atrocities. That’s hard to believe.

Secret State Department cables released by WikiLeaks reveal that in October 2009, Ann Pickard, Shell’s vice president for sub-Saharan Africa, met with Robin Renee Sanders, U.S. Ambassador to Nigeria. Sanders reported back to Washington: “[Pickard] said the [government of Nigeria] had forgotten that Shell had seconded people to all the relevant ministries and that Shell consequently had access to everything that was being done in those ministries.” Sanders added that Pickard ​“may be concerned that … bad news about Shell’s Nigerian operations will leak out.”

Addressing the court in February, Paul Hoffman, the Nigerians’ U.S. attorney, and Edwin Kneedler, the Obama administration’s deputy solicitor general, made the case that under the Alien Tort Statute corporations can be sued for violating ​“the law of nations or a treaty of the United States.” Thus, they said, Shell could be liable for crimes against humanity for its complicity in the killing and torture of Ogoni activists.

Attorney Kathleen Sullivan – (just) following orders from Shell and backed up by friend-of-the-court briefs from BP, Caterpillar, GE, Honeywell and IBM – argued that under international human rights law, only individuals, not corporations, can be charged with crimes against humanity. 

So, as with Citizens United, the lines are drawn. On one side, a pack of lawyered-up marauders claim their rights as persons one day and deny their culpability the next. On the other side, living beings seek relief from the jackals that gorge upon the fruits of human labor and gobble up the riches of the earth.

Throughout the Kiobel appeals process Republican federal judges have defended Shell, and Democratic federal judges (plus one Republican) have maintained that corporations can be held liable for crimes against humanity. This should give pause to those of us who would abandon old-fashioned electoral politics in cynicism or despair. The composition of the federal bench, like the composition of our legislatures, matters. It matters to people like Charles Wiwa, and all of the other Ogoni who have suffered because they threatened Shell’s bottom line.