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A lawsuit charging that Royal Dutch Petroleum Company, parent company of Shell Nigeria, aided and abetted the torture and murder of Nigerian activists who opposed oil drilling on their lands will be heard in the United States following a ruling Thursday by the 2nd U.S. Circuit Court of Appeals. A unanimous panel reversed the finding of a lower court judge who dismissed the case on forum non conveniens grounds, saying the court failed to give the proper weight to the plaintiffs’ desire to have the case in the Southern District. The ruling came in Wiwa v. Royal Dutch Petroleum Company, 99-7223. The family of executed Nigerian writer Ken Saro-Wiwa, and other victims of a campaign of terror against those who fought oil exploration in the Ogoni region of Nigeria, brought suit alleging that Royal Dutch recruited Nigerian police and military to attack their villages and crush opposition to the company’s development in the region. The complaint also charged that the company gave money and weapons to the government to suppress the protest movement, and also bribed witnesses to give false testimony against Saro-Wiwa, John Kpuinen and other protest leaders, who were convicted of murder and hanged based on fabricated evidence in 1995. The suit, filed under the Alien Tort Claims Act, 28 U.S.C. Section 1350, alleges violations of the international law of human rights. In 1998, Magistrate Judge Henry Pittman recommended that Southern District Judge Kimba Wood dismiss the case for lack of jurisdiction. While Wood found jurisdiction to exist in September 1998, she nonetheless dismissed the case on the basis of forum non conveniens, determining that England was an “adequate alternative forum.” On the appeal, Judge Pierre N. Leval said the lower court “failed to give weight to three significant considerations that favor retaining jurisdiction for trial.” First, the plaintiffs, two of whom emigrated from Nigeria and now reside in the United States, chose the forum, a choice that, he said, “should rarely be disturbed.” Second, the court disregarded “the interests of the United States in furnishing a forum to litigate claims of violations of the international standards of the law of human rights.” Finally, he said “the factors that led the district court to dismiss in favor of a British forum were not particularly compelling.” DANGER TO VICTIMS “Dismissal on grounds of forum non conveniens can represent a huge setback in a plaintiff’s efforts to seek reparations for acts of torture,” Leval said. “One of the difficulties that confront victims of torture under color of a nation’s law is the enormous difficulty of bringing suits to vindicate such abuses. Indeed, in many instances, the victims would be endangered merely by returning to that place.” And not only are such suits “generally time-consuming, burdensome and difficult to administer,” he said, “because they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they are brought.” Leval also said that the “new formulations” of the Torture Victims Protection Act, passed by Congress in 1991, “convey the message that torture committed under color of law of a foreign nation in violation of international law is ‘our business’ ” because, under the act, international law violations are also violations of U.S. domestic law. Leval said the lower court erred in counting against the plaintiffs the fact that they were not residents of the Southern District, while failing to credit that two of the plaintiffs were residents of the United States. Moreover, Royal Dutch “offered only minimal considerations in support of an English forum,” and factors such as Nigeria’s one-time membership in the Commonwealth of Nations were not “overriding.” Senior Judge James L. Oakes and Judge Rosemary S. Pooler joined in the opinion. Judith Brown Chomsky of Elkins Park, Pa., and Jennifer M. Green, Beth Stephens and Richard Herz of the Center for Constitutional Rights represented the plaintiffs. Rory O. Millson and Sandra C. Goldstein of New York-based Cravath, Swaine & Moore represented Royal Dutch Petroleum Company.

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