Genocide in Sudan: The Role of Oil Exploration and the Entitlement of the Victims to Reparations

This Article provides historical and legal support for the contention that the Sudanese government is guilty of genocide in southern Sudan, the Nuba mountains, and the Darfur region. Specifically, the government and the militias it sponsors have massacred civilians in these regions on a wide scale, starved and enslaved their inhabitants, committed widespread rape, burned hundreds or thousands of villages, and blocked humanitarian aid from reaching the victims in such a way as to ensure that mass deaths resulted. For these reasons, this Article disagrees with the 2005 report of the the International Commission of Inquiry on Darfur, submitted to the U.N. Secretary-General in early 2005 at the request of the U.N. Security Council, which concluded that the element of genocidal intent was missing because the government had not exterminated the entire population of Darfur. This Article applies the Genocide Convention, in light of the precedents established by national and international tribunals that have construed it over the years, to establish that genocide has occurred in Sudan because the Sudanese military and allied militia have killed and wounded many members of identifiable indigenous African groups by means of repeated and large-scale destructive and discriminatory acts. Genocidal intent may be inferred under such circumstances, as it was after the genocides in German-occupied Europe, the former Yugoslavia, and Rwanda. This Article also attempts to account for the inadequate international response to genocide in Sudan by reference to the incentives of the Sudanese government and its allies and trading partners to drive indigenous African populations off their land in order to exploit the substantial oil deposits that have been opened to exploration by multinational corporations such as the China National Petroleum Corp. The proceeds of Sudanese oil sales enrich governments with seats on the Security Council, both directly through state-controlled oil companies and indirectly by growing their oil and arms industries. Multinational corporations and their respective governments have therefore armed the perpetrators of genocide in Sudan, and have helped sustain an apathetic international response. After suffering from this dynamic for more than a decade, indigenous African leaders in Sudan, as well as international human rights advocates, have argued that Sudan\u27s oil revenues represent a source of leverage over the government\u27s genocidal policies. This Article argues that Sudan\u27s oil revenues, and those of its multinational corporate partners, should be tapped to compensate Sudan\u27s indigenous African populations for their human and material losses, and to secure for them a fair share of their country\u27s natural resources. Such a compensatory approach to the problem of genocide in Sudan may also transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct, including the inadequacy of punishing a few token officials for the policies of an entire regime, which can muster thousands of members of heavily-armed and well-organized army and militia units. The Article concludes by exploring different potential approaches to the question of how best to compensate victims of genocide and crimes against humanity in Sudan. One model is provided by the Darfur Peace Agreement, which calls for the government to pay $30 million in compensation to victims of genocide in Darfur. This amount, divided among the families of more than 450,000 murdered Darfurians, is of course too paltry to be unacceptable to leaders of indigenous Africans in Sudan. For this reason, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, as well as Human Rights Watch and Amnesty International, have argued that a more appropriate model may be provided by the U.N. Compensation Commission (UNCC), which levied reparations obligations directly against Iraq\u27s oil exports as a result of its invasion and attempted annexation of Kuwait in 1990. The UNCC has already awarded more than $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens injured in their businesses or persons as a result of the war and related events. A similar commission for Sudan would actually be more justifiable than the UNCC was, among other reasons because millions, rather than a few thousand, civilians have been killed in Sudan. A third model looks to the multinational corporation that knowingly provide a genocidal government with the resources to carry out its policies, or that reward it for displacing civilians from resource-rich areas. This model is exemplified by the Second Circuit\u27s recent opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), which held that oil corporations that aid and abet violations of customary international law may be sued for damages under the Alien Tort Claims Act if they they willingly supplied the means for a government to violate customary international law prohibitions against genocide or torture. The Article closes with the observation that genocide in Sudan and elsewhere is often motivated by the incentive of a dominant group to expropriate a foreign or minority population\u27s land, natural resources, property, and uncompensated labor. The restitution or redistribution of these resources stolen by governments and multinational corporations may deter genocide as an instrument of public policy by making it less profitable, and, more importantly, provide some means for populations driven from their ancestral homes and lands to survive. In Sudan and eastern Chad, where displaced civilians have sometimes been reduced to eating tree bark and drinking fetid water to stay alive, the question of compensation as a human rights and human security measure could not be more urgent