Presbyterian Church of Sudan v. Talisman Energy

Decision Date19 March 2003
Docket NumberNo. 01 CIV.9882 (AGS).,01 CIV.9882 (AGS).
Citation244 F.Supp.2d 289
PartiesThe PRESBYTERIAN CHURCH OF SUDAN, Rev. John Sudan Gaduel, Nuer Community Development Services in U.S.A., Stephen Kuina, Fatuma Nyawang Garbang, and Daniel Wour Cluol, on behalf of all others similarly situated, Plaintiffs, v. TALISMAN ENERGY, INC. and the Republic of the Sudan, Defendants.
CourtU.S. District Court — Southern District of New York

Carey D'Avino, Stephen A. Whinston, Berger & Montague, P.C, Philadelphia, PA, Lawrence Kill, Linda Gerstel, Anderson Kill & Olick, P.C, New York City, for Plaintiffs.

Joseph Cyr, Clifford Chance Rogers & Wells, New York City, for Defendants.

OPINION

SCHWARTZ, District Judge.

I. Introduction

Plaintiffs, current and former residents of the Republic of the Sudan ("Sudan" or "Government"), bring this purported class action against Talisman Energy, Inc. ("Talisman") and Sudan, alleging violations of international law stemming from oil exploration activities conducted in that country. Specifically, plaintiffs allege that defendants collaborated to commit gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement. Collectively, plaintiffs claim that these activities amount to genocide. Talisman moves to dismiss this action on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, lack of plaintiffs' standing, forum non conveniens, international comity, act of state doctrine, political question doctrine, failure to join necessary and indispensable parties, and because equity does not require a useless act. For the reasons set forth below, Talisman's motion to dismiss is denied.

II. Factual Background1
A. Overview

This action arises out of the alleged activities of Talisman in southern Sudan. Plaintiffs claim that Talisman, a large Canadian energy company, collaborated with Sudan in "ethnically cleansing" civilian populations surrounding oil concessions located in southern Sudan in order to facilitate oil exploration and extraction activities. See Amended Class Action Complaint ("Amended Complaint"), at Ill. This policy of "ethnic cleansing"2 was aimed at non-Muslim, African residents of southern Sudan, and entailed extrajudicial killing3, forced displacement, military attacks on civilian targets, confiscation and destruction of property, kidnappings, rape, and the enslavement of civilians. See id. at U 1. In order to understand the current conflict in context, the Court presents some background information on Sudan and its turbulent history.

B. Geography and Population4

Sudan is a large African country roughly a quarter of the size of the United States. Its current population is approximately 37 million people5, of which seventy percent are Sunni Muslim, a quarter practice indigenous religions, and five percent are Christian. Most Muslims, who are predominantly of Arabic ethnicity, live in the north of the country; most non-Muslims, who are predominantly of African ethnicity, live in the south. The north-south conflict that has wracked Sudan for years has played out predominantly along these religious and ethnic lines.

C. History6

Sudan historically existed as a collection of small, independent kingdoms and principalities. In 1820-21, Egypt conquered and unified the northern portion of the country. While claiming all of present-day Sudan, Egypt was unable to establish effective control over southern Sudan, which remained largely fragmented. A religious leader, Muhammad ibn Abdalla, after unifying some of the tribes of western and central Sudan, led a nationalist revolt which culminated in the fall of Khartoum in 1885. Ibn Abdalla died thereafter, but the state survived until the arrival of an Anglo-Egyptian force under Lord Kitchener in 1898. For the next fifty years, Sudan was jointly administrated by Britain and Egypt.7 With the consent of Egypt and Britain, Sudan achieved independence on January 1, 1956. The United States was among the first nations to recognize the new state. However, the Arab-controlled Khartoum government backtracked on a promise it had made to create a federal system. As a result, southern units of the Sudanese army mutinied, sparking seventeen years of civil war (1955-1972).8

The 1972 Addis Ababa agreement led to a temporary cessation in the north-south civil war. Under the terms of the agreement, southern Sudan was granted a degree of self-rule. In 1976, the religious "Ansars" ("followers") staged an unsuccessful coup attempt. Sudanese president Col. Gaafar Muhammad Nimeiri met with Ansar leader Sadiq al-Mahdi. The result of the negotiations between the government and the Ansars was a general amnesty and a release of political prisoners. In 1983, President Nimeiri declared his intention to transform Sudan into a Muslim Arab state and began to incorporate traditional Islamic punishments drawn from Shari'a (Islamic Law) into the Sudanese penal code. Al-Mahdi questioned President Nimeiri's credentials to Islamicize Sudanese society, and was promptly placed under house arrest. President Nimeiri declared a state of emergency, and Shari'a was applied more broadly. Amputations for theft and public lashings for alcohol possession became common. Southern, non-Muslim Sudanese living in the north were also subject to Shari'a, In light of these developments, the civil war, in abeyance since 1972, reignited.

In 1986, elections were held and a transitional military council turned over power to a civilian government as promised. Al-Mahdi became prime minister and led a coalition government. During the next three years, the civil war intensified in lethality and the economy continued to deteriorate. In 1989, the army replaced the government with the Revolutionary Command Council for National Salvation led by General Omar Hassan al-Bashir. The military regime repudiated an earlier tentative peace agreement, and sought to restart negotiations with the southern Sudanese rebels without preconditions. These negotiations proved unsuccessful. According to plaintiffs, the post-1989 military regime has "dramatically intensified the religious and ethnic persecution of non-Muslim Sudanese by engaging in a campaign of terror, both domestically and internationally, against non-Muslims it perceives to be its enemies." Amended Complaint, at 1112. The military regime also accelerated the application of Shari'a throughout Sudan. In 1991, the military regime enacted the Criminal Act of 1991, which instituted Shan `a-based penalties nationwide, including amputation and stoning. In 1993, the government transferred all non-Muslim judges from southern Sudan to the north, and replaced southern judges with Muslim judges.

D. Current Conflict

Plaintiffs allege that the present government of Sudan is controlled by a "Talibanstyle Islamic fundamentalist movement" known as the National Islamic Front. Amended Complaint, at H12. Plaintiffs contend that the government of Sudan is prosecuting a "war of genocide" against the population in the southern part of the country. Amended Complaint, at 1114. This genocide, which plaintiffs also describe as a jihad, or holy war, is purportedly aimed at the forced Islamization of the south, and has resulted in approximately two million deaths and the displacement of four million people. See Amended Complaint, at U 14. Christians and those practicing traditional indigenous religions are subject to intense persecution, including extrajudicial killing, kidnapping, rape, enslavement, and confiscation of property. See id. at H 1.

Sudan's attacks on civilians have been widely acknowledged and condemned. Plaintiffs note that in 1997, Sudan was classified by the United States as a state sponsor of terrorism pursuant to the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., based, inter alia, on its record of terrorism and on the prevalence of human rights violations including slavery and restrictions on religious freedom. See Amended Complaint, at 1113. In September 2000, Commissioner Nina Shea of the United States Commission on International Religious Freedom expressed the Commission's view that "the government of Sudan is the world's most violent abuser of the right to freedom of religion and belief." Id. at ¶¶ 50(b). In March 2001, Secretary of State Colin Powell reported that "[t]here is perhaps no greater tragedy on the face of the Earth today than the tragedy that is unfolding in the Sudan." Id. at ¶¶ 50(c).

On October 31, 2001, President Bush extended the sanctions against Sudan, declaring that "the actions and policies of the Government of Sudan continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States." Amended Complaint, at K 13. Since the Amended Complaint was filed, President Bush signed the Sudan Peace Act, Pub.L. No. 107-245 (2002) ("Peace Act"). The Peace Act, which was passed unanimously in the Senate and by a vote of 359 to 8 in the House of Representatives, states that "[t]he acts of the Government of Sudan, including the acts described in this section, constitute genocide as defined by the Convention on the Prevention and Punishment of the Crime of Genocide." Peace Act, at § 2(10). The Peace Act also condemns, inter alia, Sudan's overall human rights record, its role in tolerating slavery, its aerial bombardment of civilian targets. See id. at § 4(1). It also states that Sudan is systematically engaging in a policy of "low-intensity ethnic cleansing" to destroy the societies, culture, and economies of the Dinka, Nuer, and Nuba peoples. See id. at § 4(2).

E. Oil Connection
1. Overview

Plaintiffs contend that the current conflict in Sudan has evolved into an "oil war" for control of valuable petroleum resources in the south. See...

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