“Talisman Can’t Escape the Burden of Genocidal Complicity in Sudan”
Less than a week after Talisman Energy formally concluded the sale of its 25% stake in Sudan’s Greater Nile Petroleum Operating Company—and thus apparently freeing itself from the scrutiny generated by its complicity in genocide—the Canadian energy giant found itself even more consequentially under moral and ultimately financial inspection. Judge Allen G. Schwartz of US Federal District Court (Southern District of New York) has ruled, in a landmark decision, that Talisman may be held accountable for its complicity in the brutally destructive ethnic cleansing in the oil regions of Sudan, where the company formerly operated. In a magisterial decision, of immense moral and intellectual power, Judge Schwartz declares that “Talisman’s motion to dismiss is denied.” What does this mean for Talisman? The trial in US District Court now enters its discovery phase, where the Canadian company is most clearly vulnerable. And the discoveries to be made public will be at once appalling and financially punishing. The legal team for the Sudanese plaintiffs has indicated that one way of finding a reference point in any settlement or judgment will be the “disgorgement of profits.” In other words, the US$700 million that the Globe and Mail (Canada) recently reported as Talisman’s profits from its four and a half years in Sudan could all go to satisfy the potential plaintiff class (defined in the lawsuit as those in and within 50 miles of Talisman’s oil concession areas). The “Sudan discount” that has dogged Talisman share price for well over three years seems to be back with a vengeance: whether company management decides to settle or waits for a judgment against them, the financial consequences of complicity in genocide are clearly in the offing.
Eric Reeves [March 24, 2003]
Smith College
Northampton, MA 01063
413-585-3326
ereeves@smith.edu
The headlines of various news reports tell much of the story:
“Judge: Canadian company can be held liable for genocide” (Associated Press, in New York Newsday and other news venues, March 19, 2003)
“Talisman can be liable in genocide” (London Free Press, March 20, 2003)
“Suit Alleging Firm Aided Genocide Proceeds” (Mark Hamblett, New York Law Journal, March 20, 2003)
The BBC reports (March 20, 2003) that, “a Canadian oil company can be sued for genocide in the US over allegations it cooperated with the Sudanese government in military actions against civilians near its oil fields.”
COMTEX reports (March 19, 2003) that, “Canadian oil and natural gas producer Talisman Energy Inc. can be held liable for genocide if it can be proved the company co-operated with the Sudanese government to wage war on civilians near oilfields, a U.S. judge ruled Wednesday.”
The story has also been reported by Reuters newswire, the Financial Times (London), and the Globe and Mail (Canada). And while international focus is presently overwhelmingly on the war in Iraq, there can be little doubt that much fuller reporting on this historic lawsuit will be forthcoming. It will then become clear to all, including Talisman investors, that the terrible burden of complicity in genocide cannot so easily be sloughed off. A moral reckoning must still be made, and this in turn will have immense financial implications for the company. One attorney for the Sudanese plaintiffs (Carey R. D’Avino of Berger & Montague, Philadelphia) has noted that in assessing Talisman’s financial obligations to those it has helped to destroy, “disgorgement of profits” from Sudan operations might be one obvious point of reference. Given the US$700 million in profits that Talisman claims to have extracted from the Greater Nile consortium project (Globe and Mail, March 13, 2003), it is obvious that an exceedingly large penalty will likely have to be paid—even if on settlement as opposed to a final court judgment against the company.
But what are the chances that Talisman might prevail, even though the case has now moved to the discovery phase? In a word, slim. For here it must be noted that attorneys for the plaintiffs now have tremendously augmented powers, including the power to subpoena Talisman records, Greater Nile consortium records, all communications between the brutal Khartoum regime (including its “security” operatives) and Talisman management, as well as much additional inculpating evidence. Moreover, it is in this discovery phase that various human rights reports on the concession areas in which Talisman operated become of particular relevance. These reports come from Amnesty International, Human Rights Watch, Christian Aid, UK (with 30 years of experience in Sudan), the last three UN Special Rapporteurs for Sudan, and many others.
For example, the authoritative Canadian/British human rights assessment published in October 2001 [“Report of an Investigation into Oil Development, Conflict and Displacement in Western Upper Nile, Sudan,” October 2001, by Georgette Gagnon (Canada) and John Ryle (United Kingdom)] will be of direct, indeed irrefutable relevance:
“[T]he investigators found that there was an increase in the number of recorded helicopter gunship attacks on settlements in or near [the oil development] area. Some of these gunships have operated from facilities built, maintained and used by the oil consortium [Talisman Energy, China National Petroleum Corp., Malaysia’s Petronas, and Sudan’s Sudapet]. The attacks are part of what appears to be a renewed Government of Sudan strategy to displace indigenous non-Arab inhabitants from specific rural areas of the oil region in order to clear and secure territory for oil development.”
This same deeply informed report also finds that,
“Defecting soldiers from the Government of Sudan’s military base at Heglig [nerve center for Talisman’s operations] testified that they had been ordered to participate in ground attacks on non-government controlled settlements around Pariang (a government-controlled garrison town in the [oil] concession). This was part of an attempt to force the inhabitants out of the area. The soldiers said they had been instructed to kill civilians and any persons believed not to be loyal to the government. This, they stated, was for the purpose of securing the oil fields for development.”
And further that,
“In the present circumstances, oil development and the associated presence of foreign oil companies in Sudan is damaging to the people of the oil areas. For their part, the companies effectively assist the Government of Sudan war effort, thus exacerbating the suffering of the inhabitants of the oil area and making the prospect of peace more unlikely.”
And finally that,
“It is clear that the incidence of military usage of the Heglig airstrip [by helicopter gunships] has been considerably higher in 2000 than previously and that it has continued. The pattern of military usage is one of indiscriminate attacks by gunships on civilians in villages in non government controlled areas in and around the concession.”
“This investigation has determined that at least two of the government’s helicopter gunships have been based at oil facilities in Heglig. This is the center of Talisman’s operations and the site of a government military garrison. Soldiers who had defected from the Government of Sudan army base at Heglig on April 25, 2001, told the investigators that they were ordered to attack locations in the rural areas of Pariang by the operational brigade commander at Heglig, a Lt. Colonel Haj, acting on a directive from Khartoum.”
But of course the Gagnon/Ryle report is hardly singular in such findings. The Canadian government (Office of Foreign Affairs) also commissioned a report on Talisman’s activities in Sudan from a team of Canadian human rights experts—the “Harker Report” (January 2000). This report is an extraordinarily damning report, finding inter alia:
“We also learn, and have reported, that flights clearly linked to the oil war have been a regular feature of life at [Talisman’s] Heglig airstrip, which is adjacent to the workers’ compound. It is operated by the consortium, and Canadian chartered helicopters and fixed-wing aircraft which use the strip have shared the facilities with helicopter gunships and Antonov bombers of the Government of Sudan. These have armed and re-fuelled at Heglig [again, the nerve center of Talisman’s operations] and from there attacked civilians. This is totally incontrovertible” (p. 65).
We would do well to attend to the word “incontrovertible,” since so much of Talisman’s defense is essentially reflexive denial of what human rights reports have found to be, precisely, “incontrovertible.” But now the audience for Talisman’s self-serving denials is not a lapdog committee of oil analysts or a feckless Canadian press; it is US Federal District Court. Moreover, Judge Schwartz, in his magisterially authoritative ruling, has definitively rejected Talisman’s claim that US Federal District Court has no jurisdiction over the case. Talisman’s only other justification for its motion to dismiss the suit was also trenchantly dismantled by Judge Schwartz. Mark Hamblett, New York Law Journal, offers a precise distillation of the argument:
“Although Talisman had claimed that a corporation is ‘legally incapable of violating the law of nations,’ Schwartz’s 107-page ruling Wednesday said that the company had ‘failed to cite a single Supreme Court, Second Circuit or even Southern District of New York case’ supporting that proposition.
“On the contrary, Judge Schwartz said, the 2nd Circuit has explicitly ‘rejected the notion that the reach of international law was limited to states and those acting under color of state law.’
“And while the 2nd Circuit has never directly addressed whether corporations can be held liable for international law violations under the Alien Tort Claims Act, Schwartz said, the circuit has, in a number of cases, recognized that corporations ‘are potentially liable for violations of the law of nations that ordinarily entail individual responsibility,’ including violations of ‘jus cogens’ norms such as piracy, trade in slaves and genocide.
“States may exercise universal jurisdiction over violations of these norms, he said, and ‘this universal jurisdiction extends not merely to criminal liability but may also extend to civil liability.'” [March 20, 2003]
In short, Judge Schwartz has rendered a witheringly critical judgment of Talisman’s legal case, describing it at one point (page 54) as guided by “the most myopic reading of the complaint” that the company wishes to see dismissed. On other issues he points out that Talisman legal counsel is self contradictory in its arguments, he notes its failures of elementary logic, its failure to adduce relevant precedents, and most starkly, its “misapprehending the fundamental nature of the Alien Tort Claims Act” (page 45). The Alien Tort Claims Act is the very legal basis for the lawsuit.
Ranging from the Geneva Conventions, to the Nuremberg Charter (and trials), to the Genocide Convention, to the United Nations Universal Declaration of Human Rights, to the Statute of the International Criminal Tribunal for the former Yugoslavia, to the most current of relevant cases, Judge Schwartz has clearly—and quite consciously—made his decision into a landmark legal opinion. It is crafted with the greatest skill, the most scrupulous care, and with a superb moral intelligence. That this decision should find against Talisman on every issue raised suggests how daunting will be Talisman’s effort to stave off a fierce day of reckoning for their genocidal complicity. Current events may obscure this large and powerful truth, but not for long.