Obama's Sudan Legacy: Justice and Restitution for the People of Sudan

The Obama administration has, by all measures, done a very poor job of responding to the complex challenges in Sudan and South Sudan, and to the vast humanitarian crises exacerbated by short-sighted policy decisions. Even so, a remarkable opportunity has presented itself, one that allows the administration to create an important legacy for the two Sudans, one that would endure long after the end of President Obama's term in office.

In June 2014 the Department of Justice convicted BNP Paribas (BNPP), the French banking giant, of criminal financial activities benefiting the Khartoum regime in Sudan. This regime has for the past twenty-five years tyrannized and waged war against its own people. As a consequence of its criminal actions, BNPPP was obliged under the terms of the plea agreement to pay a forfeiture and fine that together totaled approximately $9 billion. Predictably, with so much money on the table, various U.S. entities were scrambling for a piece of this vast pie.

But from the pie, DOJ committed explicitly to providing restitution to those who were "directly and proximately harmed" by the actions of BNPP (the language is that of presiding District Court Judge Lorna Schofield). No one fits the most obvious sense of this phrase better than the people of greater Sudan.

In referring to "harm" I mean to refer not only to "harm" suffered by Darfuris, but suffered also by the 370,000 Darfuri refugees in eastern Chad; by the vast numbers of people who are suffering and dying in South Kordofan and Blue Nile--and yet who are relentlessly denied relief aid by the Khartoum regime; by the communities of eastern Sudan, who have also been victims of the ruthless, militarized security state the regime has created--most austerely over the past four years. So, too, the people of Nubia in the far north, many of whom have been displaced by ill-considered dam schemes on the Nile River. Importantly, there must be a considered response to the needs of the people of South Sudan, who endured many of Khartoum's worst military crimes committed in the years 2002 - 2008, the window of time for Sudan created by the Department of Justice "statement of facts" (South Sudan did not become an independent nation until July 2011). The Nuer communities of Unity State suffered particularly brutal attacks and civilian clearances in the oil regions.

Also conspicuous in this context, if rarely reported, is the terrible harm done to the people of the Abyei region. Militarily denied their right to a self-determination referendum by the Khartoum regime, the indigenous Dinka Ngok are daily moved further and further into Khartoum's expansive death grip. In flagrant violation of the 2005 Comprehensive Peace Agreement, containing an "Abyei Protocol," Khartoum effectively annexed Abyei, with no meaningful protest from any international actor of consequence--none.

Given the extraordinary levels of destruction, murder, displacement, land appropriation, as well as widespread and ongoing suffering and deprivation--and the acute lack of adequate humanitarian resources--it seems morally imperative that the Obama administration's Department of Justice view the BNPP restitution provisions as justifying the urgent provision of relief aid in greater Sudan. Although not clearly guided by legal precedent in this unprecedented criminal forfeiture case involving BNPP, the Department of Justice--including Attorney General Loretta Lynch--certainly has the power and discretion to expedite forfeiture funds that have been designated for "restitution."

So far, no money from the BNPP settlement has gone to the Sudanese communities harmed by BNPP's illegal financial support of Khartoum, although the Department of Justice is considering a proposal to do so. DOJ should strongly support the proposal and move ahead expeditiously; the people of Darfur and other displaced Sudanese communities are dying now:

Mortality rates owing to severe malnutrition among children in western Jebel Marra, Central Darfur, are rising rapidly. Nierteti Hospital is crowded with young patients from the areas of Guldo, Tor, and Golo, an activist told Radio Dabanga. "From 18 July until Thursday more than 15 children at Nierteti hospital died as a result of undernourishment," he said. "Seven of them died last week ... (Radio Dabanga, September 9, 2015)

So what impedes the decision to release at least part of the restitution funds destined for Sudan, which suffered from 72% ($6.4 billion) of the criminal activity on BNPP's part--financial activity that supported the Khartoum regime while it waged war on its own people?

• The humanitarian need is overwhelmingly clear;

• The predominant role of the Khartoum regime in benefitting from BNPP's criminal financial activities is beyond question--at the very least, 72 percent of those "directly and proximately harmed" by the action of BNPP. (Cuba, also part of the BNPP case, is unlikely to produce credible and comparable claims of harm, given conditions prevailing in the Caribbean nation during the time window created by DOJ's statement of facts; Iran was the beneficiary of only a very small percentage of illegal financial activity);

• The BNPP forfeiture funds are in the hands of the Treasury Department, which awaits instructions on how to disburse the $3.84 billion designated in the sentencing phase of the criminal trial (May 2015).

Treasury has received no such instructions, but President Obama could direct Attorney General Lynch to provide the means for rapid, highly targeted, supplementary humanitarian assistance--by means of the U.S. Agency for International Development--to people in desperate need in Sudan, South Sudan, and refugees camps in other countries to which many hundreds of thousands of Sudanese have been driven.

Internal displacement has also been massive in Sudan: in Darfur alone more than 2.5 million people are internally displaced, and increasingly at risk of attack by Khartoum's militia forces, particularly the Rapid Support Forces. More than 1 million children under the age of five are severely or acutely malnourished. And at the same time funding shortfalls are biting deeply: less than 40 percent of what is needed for humanitarian purposes in Sudan and South has been provided by the international community. The UN very recently reported (September 6) that:

[T]he UN Humanitarian Air Service (UNHAS) has a funding shortfall of $9.9 million which, if not addressed, will force the agency to close down air services at the end of the month. UNHAS passenger and cargo services are critical to facilitating humanitarian work in Sudan especially in remote locations where, due to lack of infrastructure, insecurity and lack of commercial alternatives.

Now is the time, Mr. President, for you to make your mark--at a critical juncture in Sudanese history; a detailed plan already exists, with widespread Sudanese support (http://sudancommunitycompensation.org). Your legacy, if actions are prompt, will be defined not merely by the diplomatic errors of the past but by your determination--now that you have the means--to deliver a partial but important form of justice and compensation to those communities of greater Sudan that have been harmed in terrible ways--ways materially assisted by the criminal actions of BNP Paribas in its gross abuses of the American financial system.

[Eric Reeves, a professor at Smith College, has published extensively on Sudan, nationally and internationally, for the past sixteen years. He is author of Compromising with Evil: An archival history of greater Sudan, 2007 - 2012 (September 2012)]