WHAT is the appropriate penalty for a firm that abets genocide? Roughly a year’s profit and the sacking of a dozen employees, the American authorities concluded this week. At any rate, that is the punishment meted out to BNP Paribas, a French bank that pleaded guilty to helping the Sudanese government sell oil, clearing proceeds through New York in violation of American sanctions. At the time government-backed militias in the region of Darfur were massacring civilians by the tens of thousands.

In spite of French politicians’ predictable squeals, it is hard to feel any sympathy for BNP. The bank played a pivotal role in fostering a monstrous regime. Most of the money it helped channel to Sudan went to the army, which in turn used the cash to finance rape and pillage. In the immediate aftermath of the crisis in Darfur, in 2006, BNP’s Swiss branch held around half of Sudan’s foreign-currency assets. Sudan’s president later became the first sitting national leader to be charged with war crimes by the International Criminal Court.
BNP argues that it broke no European laws while serving as the groom to the horsemen of Darfur’s apocalypse. That is true enough, to Europe’s shame: it should have done more to discourage the horrors in Sudan. It is also true that the underlying transactions had nothing to do with America, but because they were denominated in dollars they had to be cleared in New York, which provided America’s lawmen with a toehold. BNP’s bosses were given ample warning—by internal auditors, external lawyers and the American authorities—that its actions were illegal in America. Its managers first concealed its law-breaking and then, when they belatedly decided to stop dealing with Sudan in 2007, failed to ensure that their underlings complied with sanctions on other countries.
But the guilt of a suspect and the justice of a cause do not make a tribunal fair. And America’s system for pursuing errant banks, especially foreign ones, is anything but fair. This case, like most, did not go to court. BNP negotiated a settlement with regulators and prosecutors rather than risk a trial. No doubt the ugliness of its crimes played a role. But even if it had had a better case, BNP would have had little choice but to settle. Defeat in court might have led to the loss of its American banking licence—a death sentence for a big international bank. America’s prosecutors can also wield the threat of criminal charges against individual bankers.
Bank against the wall
Not only were BNP’s tormentors, such as Benjamin Lawsky, New York’s politically ambitious banking regulator, able more or less to dictate their terms, they also had an incentive to make the fine as big as possible because the agencies involved divvied up much of it among themselves. Mr Lawsky’s outfit gets $2 billion, four times its annual budget, which it will triumphantly deposit in New York state’s depleted coffers.
There are no meaningful checks on this process, let alone a plausible procedure for BNP to appeal. Bank bosses cannot even publicly criticise deals they agree to under extreme duress. No precedent is set and no guidance provided as to the limits of the law and the proportionality of the punishment.
So even if BNP fully deserves its punishment, the legal system that meted it out is closer to an extortion racket than justice. France’s economy minister, Arnaud Montebourg, has compared America’s pursuit of BNP to “economic warfare”. In other words, a bank that catered to mass murderers has had some success in portraying itself as a victim. Any process that can make BNP’s dealings with Sudan look anything less than shameful must be very flawed indeed.