By Excerpt from former RAN staffer, Dan Firger, who is sitting in on the Bowoto v. Chevron trial happening in San Francisco. See full post here.
Opening arguments in Bowoto v. Chevron began early Tuesday morning in federal district court in San Francisco, and it became clear within the first few minutes that company lawyers are worlds apart from Mr. Bowoto and his co-plaintiffs on almost every important factual element of the case.
Leaving Judge Illston’s courtroom, I was ready to write up a blow-by-blow account of who said what, but the SF Chronicle had already summarized the day’s arguments in a great article, and the facts in dispute are relatively straightforward. Were the protesters who occupied Chevron’s oil platform unarmed? Did Nigerian military personnel shoot first and ask questions later? These are questions the jury will answer after hearing testimony from both sides over the coming weeks.
Instead, I thought I’d reflect a bit upon what I believe to be the most important legal question at issue in this case, one whose resolution will likely have a big impact on the ability of plaintiffs to win human rights lawsuits in the future.
The primary legal battle being fought here – and part of the reason so many scholars and activists around the world are watching — has to do with the uncertain standards used to determine so-called aiding and abetting liability for corporations in human rights cases.
Among other defenses, Chevron insists that when Larry Bowoto and other protestors posed a threat to company workers on an offshore oil platform, they did the right thing by calling in the Navy for backup. Payments to military personnel notwithstanding, Chevron says it shouldn’t be held liable for the killings and torture that soldiers carried out on its behalf because it never intended for anyone to get hurt. Lead defense counsel Bob Mittelstaedt began his opening argument with a strong statement that set the stage for this line of reasoning. “This was not a peaceful protest,” he said. “It was an illegal invasion.” To Chevron, the case boils down to the simple question of whether a company has the right to “call the police” when its workers are endangered…..
Since the state of the law is so unsettled on this point, the decision in Bowoto is likely to have a big impact on the way future human rights lawsuits are litigated. Chevron knows this, of course, which is why careful observers of this case should pay extra-close attention when its lawyers use phrases like “didn’t intend” or “couldn’t have known” to describe the company’s involvement in the Nigerian military’s brutal attacks on the plaintiffs. Beyond the immediate goal of avoiding liability for these despicable acts, Chevron is pursuing a larger strategy as well, one that would lead to keeping cases like this one out of court, once and for all.
Sometimes, it seems, it turns out that law is war by other means.