© Akout Chol/AFP/Getty Images
South Sudan is the world’s youngest nation. It has been the host of a brutal civil war for all but two years of its independent existence. Violence broke out between the government and rebel forces in 2013 when President Salva Kiir removed his then-deputy Riek Machar from power, upon learning that Machar was planning to overthrow his regime. The fighting in South Sudan has been ongoing ever since, with the exception of a brief peace agreement in 2014.
The South Sudanese civil war is the product of a political power struggle, but there are deep ethnic implications in the violence as well. South Sudan’s two ethnic majorities, the Dinka and the Nuer, have an extensive history of feuding. They have taken the political tensions between Kiir’s party, the Sudan People’s Liberation Movement (SPLM), and Machar’s rebel group, known as SPLM-in opposition (SPLM-IO), as an opportunity to participate in ethnically charged violence.
The resulting war has produced approximately 400,000 casualties and the world’s third-largest refugee crisis. Four million people have been displaced, roughly 85 percent of them women and children. The United Nations Commission on Human Rights in South Sudan recently reported it had evidence of large-scale violations of international law perpetrated by all sides in the conflict, particularly the government’s security forces. The alleged violations include mass rapes and civilian killings, as well as torture and recruitment of child soldiers.
These violations of international law, if proven, would amount to war crimes or crimes against humanity. Furthermore, this conduct destabilizes an already politically weakened region, threatening international peace and security. These “dark corners of the world” are seedbeds for terrorists and others who might manipulate the region for their own ill-gotten gains.
The causes and effects of South Sudan’s conflict are apparent, but one question remains: How is one the world’s most underdeveloped economies able to fund a vast, lasting civil conflict without outside support? The answer is in the country’s most valuable asset: its oil and the companies that harvest it.
Reports surfaced in 2018 that South Sudan’s state-operated oil company, Nile Petroleum, was paying members of the government and funding the country’s National Security Service. The March 2018 report from The Associated Press, initially detailing the accusations of corporate aid to the SPLM, accused Nile Petroleum of paying high-ranking government and military officials upwards of $80 million from March 2014 to June 2015 to fund the South Sudanese military’s efforts in the civil war. Representatives of Nile Petroleum denied such reports, but suspicion has continued to mount. The U.N. Human Rights Council released a report late last month confirming the suspicion many have held for some time: Nile Petroleum is contributing oil business profits to the state in order to fund the National Security Service.
The February 2019 report states that the misappropriation of oil sales was a concern before the conflict began, but in the eyes of the United Nations, Nile Petroleum’s lack of transparency and allegiance with the National Security Services make it apparent that the oil company is funding the war and its crimes against humanity committed by the South Sudanese government. However, Nile Petroleum is not alone — oil companies from Malaysia, China and India continue to work with Nile through partnerships. This leaves executives of Nile Petroleum, and potentially other international oil firms, vulnerable to international and possible domestic criminal liability for aiding and abetting war crimes or crimes against humanity.
International criminal law essentially imposes criminal responsibility for aiding and abetting war crimes when an individual “knowingly aids, abets, or otherwise assists, directly and substantially, in the commission of a crime, including providing the means for its commission.” It appears that, without Nile’s contributions to the government’s security forces, the military’s ability to prosecute the conflict would be reduced substantially.
The Nuremberg Trials considered the principle of executive responsibility in cases of corporate aiding and abetting international crimes. Since then, there has not been much development in the jurisprudence regarding executive or corporate liability in modern international criminal law, but the trend is to do just that.
As the international community examines how major corporations worldwide provide the ways and means for nations, surrogates or rebel groups to challenge international peace and security in places such as Yemen, focus will shift as well to South Sudan and other locations. There is a dark corner of the corporate world that cannot ignore the profits from “dirty little wars.” We see that in South Sudan and elsewhere.
However, jurisprudence has not evolved sufficiently to take on this challenge to world order by holding corporations and their executives criminally liable internationally in the short term — but that time is coming. Let us continue to work toward holding corporations and their executives accountable in sustaining the world’s dirty little wars.
David M. Crane served as the chief prosecutor of the Special Court for Sierra Leone. He served more than 30 years in the U.S. government, in positions including senior inspector general, Department of Defense, and assistant general counsel of the Defense Intelligence Agency. He is a professor and distinguished scholar in residence at Syracuse University College of Law. Research assistant Nicholas Carter contributed to this report.
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