UNCHR in South Sudan Points to Oil Companies’ Complicity in Gross Human Rights Abuses

[Carlos Lopez is a Senior Legal Adviser and Sonia Ost a researcher with the International Commission of Jurists.]

On 12 March, the Human Rights Council discussed the report of the UN Commission on Human Rights in South Sudan. This is the second report of the Commission providing detailed account of numerous gross human rights violations and abuses taking place in that country, including sexual and gender-based violence and ethnic violence. But this is the first of the Commission’s reports to explicitly point to the oil industry as a “major driver” for the armed conflict and providing indicia of the role of oil companies in the continuation of conflict and in the related gross human rights violations and abuses (para 61 of HRC/40/69).

The Commission was established by the Human Rights Council and extended by HRC Resolution 34/25, to monitor and report on the situation of human rights and formulate recommendations to prevent their further deterioration, and to provide guidance on transitional justice.

At the session of the HRC, the members of the Commission reiterated their findings and recommendations. The Commission’s Chairperson, Ms. Yasmin Sooka, commented that “the distinct lack of transparency in reporting on the oil dividends which have not contributed to the GDO or the funding of any social and development programs in South Sudan.” The companion report supports this assertion by referring that private companies such as Nilepet is “able to operate in near total secrecy and has operated without any independent oversight of its commercial and financial activities. “(1015)

The Commission also pointed to the strong presence of security and military forces in the oil fields: “South Sudan’s oil industry currently remains overwhelmingly militarized and even securitized, with the National Security Services increasingly expanding their involvement in oil production and management.”

Interestingly, the Commission did not point to the “usual suspects” in this kind of events: the western oil majors, but to three joint ventures of international oil companies that hold a majority share of the oil production in South Sudan including the Chinese National Petroleum Company, Malaysian Petronas, and the Indian Oil and Natural Gas Corporation. This in itself is revealing of the global nature of corporate involvement in human rights abuses and raises a number of questions in relation to the kind of solutions that are needed at the global level. One of those obvious questions relates to the available avenues to hold those companies legally accountable in their home countries and the prospects for the victims to obtain reparation.

The three joint ventures are on the United States Department of Commerce’s Entity List, which means they have been identified as organizations that have “activities sanctioned by the State Department and activities contrary to U.S. national security and/or foreign policy interests.”

According to the Commission and the US State Department, these companies have been conducting business in South Sudan potentially in complicity with the commission of gross human rights in the country.

Let’s have a look at the kinds of crimes that have been committed in South Sudan and on which these companies are suspect of complicity.

The Commission’s report itself presents appalling descriptions of gross human rights abuses taking place:

[1010 *The protracted conflict in South Sudan has had the most profound impact on women and girls, who, on a daily basis, have to confront a horrific variety of acts of sexual violence committed by government forces and armed actors belonging to the opposition. Such acts include: the savagery of gang rapes, sexual violence, sexual exploitation, rape, forced marriage, forced pregnancy, forced abortion, as well as mutilation of sexual organs.

The report does not assert directly that the oil ventures and companies themselves have been involved in the actual commission of these crimes as accessories or otherwise, though, they have omitted the names of many of those alleged to be responsible.

“The Commission has identified a number of individuals, units and groups who bear responsibility for the violations and related crimes, and the individuals concerned should face prosecution. Their names have been communicated on a strictly confidential basis to the United Nations High Commissioner for Human Rights.”

It is not clear from the report as to which if any companies have facilitated or aided and abetted the commission on these crimes. The extent to which their presence and operation in a highly militarized and securitized setting in the midst of ongoing conflict contribute to the commission of crimes is not established. But that is an argument for a full investigation into the facts rather an exoneration for the companies. One of the next steps would be to create the conditions for such investigations to take place sooner rather than later. Unfortunately, this step that seems to be obvious, is not being considered among the next steps within the UN Human Rights Council. A draft resolution that is currently for adoption by the Council omits any reference to the need to investigate oil companies’ contribution to the conflict and the violations.

There are clear elements that point to corporate complicity. The Commission did state its belief that “international companies operating in South Sudan should be well aware of the legacy of unaddressed human rights violations associated with oil explorations in the South” (1007), referring to two previous cases of oil company complicity in South Sudan: Talisman Energy and Lundin Oil.

“International companies have reportedly been complicit either directly or indirectly in assisting Government forces and their proxies in the fighting that has taken place in the oil regions, especially by allowing them to use their facilities, in particular, air strips and road infrastructure.”

Specifically, Talisman Energy “allowed the Sudanese Armed Forces to use its air strip and other facilities, despite knowing of the Sudan Government’s policy of forcibly displacing civilians and its commission of other human rights violations in the area.” Talisman faced civil litigation in the United States but the lawsuit was ultimately dismissed. Lundin Oil has also been accused of similar activities in South Sudan and their former top executives, Ian Lundin and Alex Schneiter, are awaiting trial in Sweden this summer.

The Commission noted that during the period of business activity by Lundin Oil in South Sudan, “widespread and serious human rights violations were committed against the local population, as part of military operations to forcibly displace hundreds of thousands of inhabitants for the purposes of oil exploration.”

The trial of Lundin executives in Sweden and a series of prosecutions in France offer examples for other countries serious national law enforcement efforts to pursue investigations across frontiers on cases of corporate complicity overcoming political pressure and resource limitations.

The UN Commission also proposes recommendations for the Government of South Sudan including “establishing an appropriate monitoring mechanism to monitor the transfer of an equitable share of the revenue to states and ensure public reporting.” In this way oil revenue will benefit the whole country. The Commission also called on companies to carry out “human rights due diligence” by assessing the risks of human rights violations posed by their activities (either direct or indirect) and taking steps to address these risks, as well as publicizing these actions.”

These recommendations are well and fine, but insufficient alone to be an effective deterrent to companies that would engage in abusive or complicit behaviour or to bring a measure of justice and accountability so needed in the country and in the oil industry. An independent investigation is needed as a first step. The UN should set up an independent investigation in South Sudan to identify the complicit oil companies and hold them accountable for their contribution to these gross human rights violations.