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sanctions, but President Bush did not overtly threaten to veto the bill.1530 The State Department said the administration “supports generally” the aims of the pending Sudan Peace Act, but “some of its amendments” could infringe on the prerogatives of the SEC.1531 Federal Reserve Chairman Alan Greenspan opposed the proposed capital market sanctions.1532 International response to the U.S. barring companies working in Sudan from the U.S. capital markets was predictably negative as well.1533 The Senate bill that passed did not contain the capital market sanctions provision,1534 despite lobbying efforts.
A Talisman spokesman said that his lawyers believed the legislation applied to companies actually operating in Sudan and not parent corporations like Talisman. Talisman owns a Dutch subsidiary, Talisman (Greater Nile) B.V., which owned 25 percent of GNPOC, which operates the oilfields.1535 The oil company press release maintained that its presence in Sudan was positive and Talisman remained “a strong advocate for human rights.”1536 Later in the month of June 2001, however, Talisman CEO Jim Buckee said that if it were a choice between loosing its access to the NYSE and holding on to its Sudan project, Talisman would choose the 1530 Steven Mufson, “House Bill on Sudan Troubles Bush,” Washington Post, August 15, 2001.
1531 “State Department Has Reservations about Sudan Act,” Reuters, Washington, D.C., June 14, 2001.
1532 Campion Walsh, “Bush Admin, Greenspan Oppose Tighter Sudan Sanctions,” Dow Jones (New York), Washington, July 25, 2001.
1533 E.g., “Malaysia slams US ‘bullying’ tactics against firms in Sudan,” AFP, Kuala Lumpur, June 16, 2001.
1534 Claudia Cattaneo, “US human rights legislation lessens pressure on Talisman,” Financial Post (Toronto), June 14, 2001.
1535 Marc Lacey, “The House Votes Strongly in Favor of Putting Pressure on Sudan,” New York Times, June 14, 2001.
1536 Talisman press release, “Talisman Energy Comments On Proposed US Legislation,” Calgary, June 13, 2001.
stock exchange.1537 The Sudanese government hastened to add that if Talisman pulled out of Sudan, there were other “reputable companies” that would take over.1538 While the capital market sanctioners were still pressuring the Senate to support the Sudan Peace Act and its capital market amendment, the September 11 attack on the World Trade Towers and the Pentagon intervened. At the request of the U.S. president, this and other contentious legislation was postponed.
The capital market sanctions issue was shortly revived by activists, outraged that an outgoing Republican Senator, Phil Graham of Texas, imposed a hold on Senate consideration of the capital market sanctions.
Then the National Foreign Trade Council, representing more than 500 U.S. companies, weighed in with what were the underlying concerns of the financial and manufacturing communities. It considered that Sudan was the “stalking horse for China,” and vowed to continue lobbying against the Sudan Peace Act.1539 Avoiding raising more dust on the capital market sanctions issue, however, Talisman in January 2002 issued shares through the Toronto Stock Exchange rather than the NYSE.1540 Talisman Sued by Displaced under the Alien Tort Claims Act in New York Although Talisman had a temporary reprieve when the Sudan Peace Act seemed to be relegated to the back burner, Talisman’s troubles were not at an end. On November 8, 2001, the Presbyterian Church of 1537 James Stevenson, “Talisman says Sudan oil holdings not worth being banned in the U.S.,” Canadian Press, Calgary, June 18, 2001 1538 “Talisman can be replaced by other ‘reputable’ oil companies, says Sudan,” Canadian Press, Calgary, June 26, 2001; Jeffrey Jones, “Sudan puts brave face on potential Talisman exit,” Reuters, Calgary, June 26, 2001; Kamarul Yunus, “Petronas may benefit if Talisman pulls out from Sudan,” News Straits Times (Kuala Lumpur), July 16, 2001.
1539 Paul Basken, “U.S. Lawmarkers Seeking Sudan Sanctions Encounter China Obstacle,” Bloomberg, Washington, January 17, 2002.
1540 Talisman press release, “Talisman announces successful $ 325 million medium term note issue,” Calgary, January 22, 2002.
The press release specifically said that these securities have not been and will not be registered in the U.S.
Sudan and individuals displaced from the oilfields brought a class action lawsuit in U.S. federal district court for the Southern District of New York against Talisman and the Sudanese government. 1541 The amended complaint alleged that “Defendants have collaborated in a joint strategy to deploy military forces in a brutal ethnic cleansing campaign against a civilian population based on their ethnicity and/or religion for the purpose of enhancing Defendants’ ability to explore and extract oil from areas of southern Sudan by creating a cordon sanitaire surrounding the oil concessions located there.”1542 Talisman’s motion to dismiss was denied and the suit is pending as of the writing of this report. 1543 U.S. Aid to Sudanese Rebel Groups The most controversial position of the U.S. CIRF and the conservative religious lobby on Sudan, for those not in the financial community, was that the U.S. should provide assistance to the rebel SPLA. The U.S. CIRF recommendation of aid to the SPLA, made in 2000, was objected to by one of the commissioners, Dr. Laila Al-Marayati.1544 In its 2001 report the U.S. CIRF scaled back the recommendation (in line with congressional changes) to recommend support for the National Democratic Alliance (NDA), to which it referred as “the political opposition in Sudan.” This description is misleading. The NDA comprises military as well as political opposition. The SPLA is by far its largest member.1545 1541 Presbyterian Church of Sudan vs. Talisman Energy Inc., Civ. Action No. 01CV9882 (AGS), S.D.N.Y., second amended complaint dated August 15, 2003, http://www.bergermontague.com/pdfs/SecondAmendedClassActionComplaint.pdf (accessed August 21, 2003).
1543 Presbyterian Church of Sudan vs. Talisman Energy Inc., Civ. Action No. 01CV9882 (AGS, S.D.N.Y., opinion on motion to dismiss dated March 19, 2003, http://www.bergermontague.com/pdfs/talisman.pdf.pdf (accessed September 24, 2003).
1544 “Report of the United States Commission on International Religious Freedom,” Washington, D.C., May 1, 2001, p. 133 (concurrence with qualifications to recommendations 3 and 5 regarding Sudan).
1545 The NDA is the umbrella opposition group of which the SPLA is by far the largest military force. Since the withdrawal of the Umma Party, the Democratic Unionist Party (DUP) is the biggest political party in the NDA.
496Foreign Corporate Complicity, Foreign Government Support
Initially the aid was sought in the form of an amendment to the appropriations bill for the fiscal year 2000, which began October 1, 1999. The amendment, sponsored in the Senate by first-term U.S. Sen.
Sam Brownback and in the House by Reps. Donald Payne, Frank Wolf, Tom Tancredo, and others, would at the discretion of the president supply food aid to the SPLA.
The move to give food aid to the SPLA was met by the resistance of most of the American operational NGOs involved in relief activities in northern and southern Sudan. These American organizations were concerned that the U.S. supplying food aid to rebels would become merged—in the mind of the Khartoum government—with their own food-supplying activities to needy civilians, and they might become military targets. They wanted the appearance of neutrality in the delivery of humanitarian assistance to be preserved, not compromised. President Clinton ultimately decided not to supply food aid to the SPLA.1546 Another U.S. $10 million dollars for the NDA—for “nonlethal nonfood” assistance—was inserted into the next appropriations bill, for fiscal year 2001 (October 2000-September 2001). No executive action was taken on that, however, until after the U.S. presidential elections were held in November 2000.
Apparently the outgoing Clinton administration through the State Department sent out requests for bids for a U.S. $ 3 million project designed to provide training in negotiations and office support for the NDA, for “building its capacity to participate in the peace process.”1547 The U.S. CIRF supported this project. 1548 1546 William J. Clinton, Letter from the President to the Chairmen of the House and Senate Committees on Appropriations, February 10, 2000.
1547 The U.S. $ 3 million funding, separate from the U.S. $ 10 million inserted into the 2001 appropriations bill, was initially approved during the Clinton administration. “Determination: Assistance to the National Democratic Alliance (NDA),” signed by Secretary of State Madeliene Albright, November 15, 2000.
1548 “Report of the United States Commission on International Religious Freedom,” Washington, D.C., May 1, 2001, p. 130.
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News of the contract, on which only DynCorp1549 of Reston, Virginia, bid, was not publicly disseminated until a story appeared in the Washington Post on May 25, 2001, about this U.S. $ 3 million contract for an avowed opposition group.1550 The new secretary of state, Colin Powell, hastened to explain that this contract would not extend the conflict and would boost the NDA’s capacity to negotiate politically;1551 a State Department officer said that it did not include vehicles or communications equipment,1552 two of several dual-use objects mentioned in the Congressional report language.1553 The reasons for supporting the NDA with U.S. $ 3 million were confusing. The training was for capacity-building so that the NDA could participate in the peace process. Northern politicians, who are the principal group of civilians in the NDA, are already skilled political negotiators, dating from their participation in multiparty politics in Sudan before the military coup of 1989 which lead to the banning of all political parties and to their exile. It seems that the training was intended for SPLM/A negotiators, whose negotiating skills are less developed.
1549 Coincidentally, an article appeared about DynCorp’s work in Bosnia, where 161 of 1,832 U.N. police officers were from the
United States, all selected and trained by DynCorp under an exclusive U.S. $ 15 million annual contract with the State Department:
“American officials acknowledge serious problems in selecting and training American police officers to serve in Bosnia.” Colum Lynch, “UN Police in Bosnia: Who's Watching?” Washington Post U.N., New York, May 29, 2001. DynCorp is the leading U.S.
government contractor for anti-drug work in Colombia, Bolivia, and Peru. Nora Boustany and Alan Sipress, “U.S. Slates $3 Million for Sudanese Opposition,” Washington Post, May 25, 2001.
1550 “U.S. Slates $3 Million for Sudanese Opposition,” May 25, 2001.
1551 “Sudan slams US for supporting opposition,” AFP, Khartoum, May 28, 2001 (quoting Colin Powell).
1552 Jeff Millington, director, East Africa, U.S. State Department, Washington, D.C., June 11, 2001.
1553 The language from the report accompanying the Foreign Operations Appropriations bill for FY 2001 was: “Provided further, That up to $10,000,000 of the funds appropriated under this heading may be used, notwithstanding any other provision of law, to provide assistance to the National Democratic Alliance of Sudan to strengthen its ability to protect civilians from attacks, slave raids, and aerial bombardment by the Sudanese Government forces and its militia allies, and the provision of such funds shall be subject to the regular notification procedures of the Committees on Appropriations: Provided further, That in the previous proviso, the term ‘assistance’ includes non-lethal, non-food aid such as blankets, medicine, fuel, mobile clinics, water drilling equipment, communications equipment to notify civilians of aerial bombardment, non-military vehicles, tents, and shoes.”
Another puzzling aspect of the U.S. $ 3 million was that it was intended to improve NDA capacity for participation in peace negotiations—when the NDA is not a party to the IGAD peace negotiations, the only peace process that the U.S. wholeheartedly backs.
It appears that the U.S. completely ignored one aspect of the U.S. CIRF recommendations, however:
their qualification that “aid should not be given to any opposition group unless it is making substantial and verifiable efforts to adhere to international human rights norms.”1554 DynCorp began to administer the contract in 2002, and its official admitted that it was providing a Washington, D.C., office for the NDA and paying its staff, all pursuant to State Department approval.1555 One staff member of the NDA office was the person who had long been the SPLA representative in Washington. DynCorp maintained that the contract was for only $ 2.8 million and that it was also refurbishing and supporting an NDA office in Asmara, Eritrea. DynCorp insisted that its work did not involve any military aid at all, and that it had retained a U.S. human rights professor especially to work on its Sudan project.1556 Meanwhile, much of the Economic Support Fund funding for fiscal year 2001 (U.S. $ 10 million) and for fiscal year 2002 (October 1, 2001-September 30, 2002, another $ 10 million) was going not to the NDA as permitted in the authorizing language, but to support the high-level peace effort conducted by Senator Danforth, under the “not withstanding any other provision of law” clause of the legislation. Some of the funds were going to pay for transport and lodging and per diems for the SPLM/A delegates to the talks, however.
1554 “Report of the United States Commission on International Religious Freedom,” Washington, D.C., May 1, 2001, p. 130 (footnote omitted). The concurring U.S. CIRF commissioner noted that due to the degree of documented human rights abuses by the SPLA, “actual compliance with international norms (not simply “efforts”) must be significant and sustained before any aid would be considered. At this time, no such improvements have been verified by either the U.S. government or credible non-governmental human rights organizations in the region.” Ibid., p. 133. The U.S. government is not bound by these recommendations.
1555 DynCorp official, Human Rights Watch interview, Washington, D.C., May 7, 2002.