Is the ICC Responsible for Rolls-Royce Divesting from the Sudan?

by Kevin Jon Heller

At the risk of committing the post hoc fallacy, it is interesting to note that less than a week after the ICC issued its first arrest warrants related to the situation in Darfur, Rolls-Royce has announced that it will no longer do business in the Sudan:

Rolls, which supplies engines to oil firms in the country, said it would “progressively withdraw” from existing contracts and not seek new business.

[snip]

Although it does not have any presence in Darfur, Rolls has been providing support services to oil producers in Sudan for more than five years.

The firm does not have any contracts with the Sudanese government and its business there represents only a small fraction of its global operations.

The decision to gradually remove its 20 staff had been taken “in view of increasing international humanitarian concerns about the situation in Darfur”, the firm said.

“The company recently reviewed its position and has decided it should discontinue business in Sudan,” it added.

“Rolls-Royce believes this is a responsible line to adopt in the current circumstances.”

Rolls-Royce is the third major company to divest from the Sudan since the beginning of the year. In early January, ABB, a Swiss power-technology firm, announced that it would no longer do business there. Two weeks later, Siemens, the German multinational, did the same. The three announcements represent major victories for divestment activists who hope to bring the kind of economic pressure to bear on the Sudan that an earlier generation of activists brought to bear on South Africa:

The campaign, focusing on the lucrative oil industry, is pressuring certain companies to leave Sudan, where the government is accused of arming militias known as janjaweed who are blamed for widespread rapes and killings of Darfur civilians. Campaigners also are encouraging investors across the globe, from banks to retired teachers with pension funds invested in companies doing business in Sudan — to take their business elsewhere.

In the U.S., officials with the Save Darfur Coalition unveiled Tuesday the Divest for Darfur campaign, urging Fidelity Investments and Berkshire Hathaway Corp., based in Omaha, Neb., to cut off their relationships with PetroChina Co., China’s No. 1 oil producer. PetroChina is known to be a major investor in government-owned oil exploration in Sudan.

[snip]

The U.S.-based Sudan Divestment Task Force started its campaign in 2005. The idea has come more recently to Europe. The new global edge, activists say, has helped give it powerful momentum.

“It is four years since the beginning of the Darfur crisis,” says Nick Donovan, head of policy and research at the U.K.-based Aegis Trust, an independent organization that campaigns against genocide. But the international community’s approach of peacekeeping and prosecutions in the International Criminal Court has failed to stop the violence, he said.

“The government of Khartoum has never felt under sufficient pressure,” Donovan said.

[snip]

Rolls-Royce was one of the “top dozen” targets of the divestment campaign. The British company has not publicly acknowledged that the campaign spurred it to withdraw, but cited “international humanitarian concerns” in its decision.

“We just felt that this was the time to review the position and that prompted the decision we made,” said Martin Brodie, a company spokesman.

French oil services company Schlumberger Ltd., another on the activists’ hit list, was discussing the nature of its involvement in Sudan with the Sudan Divestment Task Force, according to Schlumberger spokesman Stephen Whittaker.

[snip]

Helped along by the involvement of celebrity actors George Clooney and Mia Farrow, and links between evangelical churches in the United States and southern Sudan, to date, 10 U.S. states and more than 40 universities have agreed to divest their funds from Sudan, according to Adam Sterling, Task Force director.

Sudan Divestment U.K. started in November 2006 and since then campaigns have been initiated in Australia, South Africa and Italy, and are being developed in Brazil, France, Germany and Malaysia.

“There is an increasing awareness on the part of institutional investors of what is going on which comes from investors in the U.S. approaching investors in the UK,” said Ebba Schmidt, spokeswoman for the U.K. Local Authority Pension Fund Forum.

To be sure, activists have been urging corporations to divest from the Sudan long before March 2005, when the Security Council referred the situation in Darfur to the ICC. As the story excerpted above indicates, though, 2005 marked the beginning of the divestment campaign’s expansion worldwide. Coincidence? Perhaps — but probably not. The referral not only increased the attention paid to Darfur in general, it also put corporate executives on notice that doing business in the Sudan could conceivably expose them to individual criminal responsibility for the war crimes and crimes against humanity committed by the Sudanese government and by rebel groups. Article 25(3) of the Rome Statute provides that:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person… (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall… (ii) Be made in the knowledge of the intention of the group to commit the crime.

As the text of the Article indicates, the person who contributes to the crime does not have to want the group to commit the crime; he or she only has to know that the group intends to do so. Although the knowledge requirement is still a high standard — higher than two of the three forms of joint criminal enterprise liability approved by the ICTY, which only require the group’s criminal conduct to be foreseeable — a corporate executive who sold anything military-related to the Sudanese government or to a rebel group may well have difficulty convincing the ICC that he did not know that his products would be used for criminal purposes.

For more information on the Darfur divestment campaign in the U.S., see here. For the U.K., see here.

http://opiniojuris.org/2007/05/15/is-the-icc-responsible-for-rolls-royce-divesting-from-the-sudan/

2 Responses

  1. Dear Kevin,

    Already in 2003 Talisman Energy, a Canadian oil company, pulled out of southern Sudan by selling its 25 percent interest in the Greater Nile Petroleum Operating Company to an ONGC Videsh, an Indian Company. As part of this case the Presbyterian Church of Sudan has sued the company in an American court under ATCA for genocide, stating Talisman had helped Sudanese officials “bomb churches, kill church leaders and attack villages in an effort to clear the way for oil exploration.” As Roger Alford previously wrote in his post, the Southern District of New York last September granted Talisman’s motion for summary judgment, though appeal is still pending in this case.

    I can only second what you said said: »a corporate executive who sold anything military-related to the Sudanese government or to a rebel group may well have difficulty convincing the ICC that he did not know that his products would be used for criminal purposes.« However, another matter is how realistically could we expect such development. I am not aware that Office of the Prosecutor of ICC has any intention of bringing cases against directors or owners of corporations that have allegedly committed crimes against crimes against international law. It seems that cases are not lacking, but appropriate mechanisms to deal with corporate abuses. In DR of Congo ICC prosecutor, Luis Moreno-Ocampo, is concentrating his investigation on rebel leaders and not on the corporations that have allegedly financed them. This is despite the fact that the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth in the Democratic Republic of Congo in its October 2002 report (S/2002/1146), emphasized that “the most important element in effectively halting the illegal exploitation of resources in the Democratic Republic of the Congo relates to the political will of those who support, protect and benefit from the networks.” Annex III of the report included a list of 85 companies considered by the Panel to have not observed the OECD Guidelines for Multinational Enterprises and challenged the governments adhering to the Guidelines to use them to promote responsible conduct among those companies.

    All in all, it appears that domestic criminal system may be more appropriate forum to deal with corporations committing crimes against international law. Just on 9 May 2007 On 9 May 2007, the Appeals Court in The Hague found Frans van Anraat, a Dutch businessman, guilty of having participated in complicity to violations of the laws and customs of for supplying SH with chemicals used for the production of mustard gas and nerve gas during Iraq-Iran war.

  2. Admittedly, the Talisman divestiture is what came to mind when I was reading this.

    It seems to be less than a stunning success, to me, as another company simply picked up where Talisman left off.

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