On February 20th, the Commission on Human Rights in South Sudan, a United Nations Human Rights Council investigative body, released a report documenting continuing violations including potential war crimes and crimes against humanity, despite the signing of a peace agreement in October 2018.
The report is particularly notable from a legal perspective because it labels the South Sudanese oil industry as “a major driver for the continuing violence, the ensuing human suffering, and the violations of international humanitarian law witnessed there.” In fact, the three major joint oil ventures in the country, between Nile Petroleum Company, the state-owned oil company, and Chinese National Petroleum Company, Petronas of Malaysia, and the Indian Oil and Natural Gas Corporation, have already been designated by the U.S. Department of Commerce as violators of American policy and national security interests.
However, despite this, it must be asked: will these companies likely face any legal blowback for their purported involvement in the South Sudanese civil war?
The likelihood that these companies will face legal discipline for their actions within South Sudan seems to depend largely on the outcomes of two other cases which are currently underway.
In June of 2018, LafargeHolcim, a major French construction company, was placed under formal investigation on allegations of terrorist financing and aiding and abetting war crimes and crimes against humanity to continue operating in Syria during the civil war. This investigation arose from questions surrounding how the company was able to keep its plant in the city of Jalabiya in northern Syria running when the area was controlled by ISIS. French court documents indicate that LaFarge shelled out as much as $5 million to various armed groups.
Initially, in 2017, eight former executives were charged this case, which involves not only the payment of taxes and bribes to ISIS and other armed groups, but the selling of cement and other materials to those same groups. In October, investigators seized the severance payment given to Bruno Lafont upon his departure from the company. They also seized funds from two former managers in Jalabiya, Bruno Pescheux and Frederic Jolibois, as well as the former deputy general operating manager Christian Herrault, bringing the total sum of seized money to 3.7 million euros. On March 5th, French judges dropped the charges against former Chief Executive Eric Olsen, saying that he was not involved in acts which could be considered terrorist financing.
It seems likely that at least some individuals will be charged in these cases, but a more institutional-level responsibility does not seem likely, especially because Olsen, the Chief Executive at the time of the illegal operations, was cleared of charges.
A similar situation has unfolded around Royal Dutch Shell in Nigeria. In 2009, the civil case of Wiwa v. Shell, which was heard in the federal district court of New York, was settled for $15.5 million. In 2013, a case forwarding a similar narrative was dismissed in the U.S. Supreme Court over a lack of jurisdiction. Most recently, the widows of four of nine men executed by Nigeria’s military regime in 1995 filed a civil lawsuit in 2016 seeking compensation and an apology from the Royal Dutch Shell company for their alleged complicity in the violent crackdowns that led to the deaths of these nine men. A hearing took place on February 12, 2019 and a decision is expected on May 8, 2019.
Several months after the announcement of this most recent civil case, Amnesty International urged the UK, Nigeria, and the Netherlands to consider criminal investigations against Shell, believing the company complicit in murder, rape, and torture in Nigeria. So far, no such case has materialized.
The reality may be that these cases will remain inconsistent. While the U.S. and Netherlands have thus far shied away from strong criminal investigations, the French have shown little pause in undertaking a criminal investigation of LaFarge.
To solve this problem, there must be a push to create better international consensus on how the complicity of transnational corporations in war crimes and crimes against humanity should be judged. The UN should establish a working group meant eventually to produce a convention governing the complicity of various third party actors in conflict environments as a means to clarify legal issues surrounding warfare.
In the absence of those standards, the punishments for the oil companies present in South Sudan will ultimately fall to the governments of Malaysia, China, and India. In this world of inconsistency, there is no telling whether these companies will ever be held accountable for their actions in South Sudan.
Evan Schleicher is an Editorial Intern with the International Enforcement Law Reporter. He is also an MA candidate in Security Policy Studies at George Washington University’s Elliott School of International Affairs.