It is now a year since the guilty plea by BNP Paribas, the French banking giant, to charges by the Department of Justice that it had done clandestine business with the governments of Sudan, Iran and Cuba, countries that were subject to economic sanctions. Over the period covered in the indictment, from 2004 to 2012, the amount that was criminally laundered came to more than $8.8 billion, which determined the size of the penalty.
The bulk of these illegal transactions — about $6.4 billion, or more than 70 percent — involved Sudan, whose president, Omar al-Bashir, was indicted in 2009-10 by the International Criminal Court for multiple counts of crimes against humanity and genocide in Darfur. The people of Sudan, who continue to suffer terribly under Mr. Bashir’s regime, deserve a significant portion of the penalty assessed.
The most effective way of delivering this restitution would be in the form of increased humanitarian assistance. This could be quickly organized by the United States Agency for International Development.
But what has happened to the $8.97 billion that BNP paid for its criminal actions?
Sadly, the BNP case revealed that the Justice Department had no real game plan for an equitable distribution of the money from this historic prosecution. Financial regulators claimed large portions of the vast penalty. The Treasury took $1 billion, while the Federal Reserve received $500 million. Most surprising, and without compelling justification, Gov. Andrew M. Cuomo prevailed on justice officials to allocate nearly $3.3 billion to the coffers of New York State.
Only $3.84 billion remains for restitution. On an arithmetical basis, the Sudanese people should be owed at least 70 percent of this sum, about $2.7 billion. Yet the only mechanism provided by the Department of Justice for dispersing restitution is via individual applications to a little-known website, with a July 30 deadline. In addition, the site’s requirement for documentation of harm suffered sets an unrealistic and unfair standard, even for those in the Sudanese diaspora with access to the Internet.
At the time of the 2014 settlement, the emphasis in the Justice Department’s lengthy statement was on the deterrent effect of the large penalty and the message sent to other institutions that might be tempted to launder money from regimes blacklisted by the United States. Restitution for the victims was an afterthought, nowhere mentioned in the original announcement of BNP’s guilty plea.
Yet the issue remains central since so many Sudanese clearly meet the criterion set down by the presiding Federal District Court judge, Lorna G. Schofield: Those deserving restitution are people who have been “harmed directly and proximately” by BNP’s criminal conduct.
All three governments benefiting from the illegal transfers were on the State Department’s list of state sponsors of terrorism (Cuba was removed in May). Some of those harmed by the criminal transactions during the period covered by the suit may be Cuban or Iranian, but few will have faced anything on the order of the genocidal violence suffered by the Sudanese.
BNP’s actions were a huge financial boon to the Khartoum regime, which had previously struggled to find pliant institutions for such illegal transactions even as it tried to meet the costs of hideously expensive wars against its own people. The Justice Department’s criminal complaint against BNP Paribas (which it named BNPP) noted that “BNPP’s central role in providing Sudanese financial institutions access to the U.S. financial system, despite the Government of Sudan’s role in supporting terrorism and committing human rights abuses, was recognized by BNPP employees.”
It’s clear that millions of Sudanese constitute a vast majority of victims harmed by BNP’s criminal conduct, both those who remained in Sudan and the tens of thousands forced into the diaspora or displaced to refugee camps in eastern Chad, Ethiopia and South Sudan, where people languish, often in terrible conditions.
The people of the Sudanese regions of Darfur, Blue Nile, South Kordofan, Eastern Sudan and Nubia, as well as the refugee populations in neighboring countries, are clearly those most harmed and most in need of restitution. U.S.A.I.D. has the capability to fund relief efforts in all these areas. The distribution of money should be conducted in close consultation with those in the diaspora, particularly the Darfuri diaspora.
This would be the most reasonable and equitable use of the remaining restitution funds. Among my Darfuri contacts, I have encountered no one who thinks that the Justice Department’s program of administering case-by-case restitution for individual applicants in the diaspora makes sense. These Darfuris believe that the money should go to war-ravaged areas to fund, first, humanitarian and, later, development projects.
The Department of Justice must immediately reconsider its present web-based restitution system, which is set to expire at the end of the month. The humanitarian and relief operations in Sudan (in areas where they are permitted) and among Sudanese refugee camps are grossly underfunded. That is where the BNP money should go.
Correction: July 14, 2015
An earlier version of this article referred imprecisely to the indictments filed by the International Criminal Court against Sudan’s president, Omar al-Bashir. While he was charged with crimes against humanity in 2009, he was not charged with genocide until 2010.
Eric Reeves, a professor of English at Smith College, is the author of A Long Day’s Dying: Critical Moments in the Darfur Genocide.