Home | Comment & Analysis    Monday 2 November 2015

BNP Paribas: What compensation for harm suffered?

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By Lutz Oette

Victims of human rights violations in Sudan are familiar with a history of impunity and lack of reparation. In the unique BNP Paribas S.A. case, a US District Court judge sentenced the French bank in May 2015 to pay over 9 billion US dollars as penalty for ‘conspiring to violate the international emergency powers act and the trading with the enemy act’. In other words, breaching US sanctions against Cuba, Iran and Sudan. In response, the US Department of Justice announced that it will explore ‘ways to use the forfeited funds to compensate individuals who may have been harmed by the sanctioned regimes’, including Sudan.

After collecting information online as a first step, it is unclear what is going to happen next. Into this void stepped Eric Cohen and Eric Reeves, putting forward a Sudan Community Compensation Program Proposal to the US Department of Justice in early September and initiating a campaign that has gained considerable momentum (http://sudancommunitycompensation.org/). This is an important move. It highlights the urgency of the question of how the estimated 2.8-3.48 billion US dollars available for Sudan should be spent. The proposal carries some weight as it has secured the support of several Sudanese groups and individuals. Essentially, it calls for a primary use of the funds to provide emergency humanitarian aid for Sudanese refugees and internally displaced persons. It also sets out a community-based reparation programme focusing on reconstruction and redevelopment following the end of conflict and a change in government. The humanitarian needs are undoubtedly serious and urgent.

However, using available money for this purpose has a rather tenuous link to what can be called compensation; it does not relate to rights, which is the language implied by the US Department of Justice when talking about compensation for harm. Some reparation programmes in other countries have provided interim support to victims of violations who have urgent needs but the proposal does not link humanitarian aid back to any harm suffered. Instead, it uses the humanitarian aid template, proposing that UN agencies and the US agency for international development provide and coordinate relief.

The secondary use proposed is based on an analysis that the harm inflicted, including by means of the crimes of genocide, crimes against humanity and war crimes, essentially targeted communities. This is to a considerable extent true in the course of the armed conflicts but overlooks the fact that victims are also individuals who have suffered very personal violations, such as rape and other gender-based violations. It also ignores individuals who suffered harm outside armed conflicts, such as torture at the hand of the National Intelligence and Security Forces in Khartoum and elsewhere. The proposal argues that given ‘the complexity of addressing compensation details, it is appropriate to structure the Sudan-related compensation programme as a community-based trust fund, rather than a process of individual claims of restitution’.

The complexity of individual mass claims procedures is well known but this doesn’t mean that it cannot be done as the UN Compensation Commission on Iraq and other processes show. Using funds for redevelopment and reconstruction as proposed is important but this is the responsibility of the state in any case; it doesn’t focus on those who have been harmed and their right to justice. Indeed, there has been a lot of concern in other countries about needs based approaches that conflate reparation with development, and offer nothing to those who have left areas of conflict or countries for good. In addition, deferring such programme until ‘the conflict and oppression by the Government of Sudan finally ends’ is asking for a lot of patience from those who should benefit given the uncertainty of when this will happen.

Both the focus on humanitarian aid and development treats people primarily as beneficiaries in need; it is silent on individuals and groups as rights-holders and agents. The denial of respect for individuals and groups, and their rights and justice is at the heart of conflicts in Sudan, and the Government of Sudan has yet to provide the reparation due. People in Sudan, when asked, such as by the Mbeki panel in 2009 in Darfur, have made it very clear that they want justice and have nuanced ideas of what it means for them. If the call for compensation by the US Department of Justice is to be taken seriously, it should consider these voices, as well as the rich lessons learned from many other countries.

This includes that there are certain agreed standards of what compensation entails and that the people who suffered harm should be consulted and participate in the development of any programme. The advocacy campaign is an important step in that direction but it doesn’t replace a process in which these issues are opened up for careful consideration. The proposal must be credited with having knocked loudly on the doors of the US Department of Justice. These doors should now be opened quickly to bring the people concerned to the table to discuss all available options; given the magnitude of harm suffered, and the way people’s agency in Sudan has been denied in Sudan, a first step towards justice is that they have a clear say in how the money – their money – should be used.

The author is a Senior Lecturer in Law . School of Law SOAS, University of London



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