Commercially motivated pillage has taken on increasing importance in recent years as the illegal exploitation of natural resources has emerged as a primary means of financing conflict. But efforts to hold disreputable commercial actors responsible for war crimes or other serious human rights violations have been frustrated, frequently because of difficulties in proving corporate complicity. Larissa van den Herik of Leiden University organised the conference 'Corporate War Crimes: Prosecuting Pillage of Natural Resources' in The Hague last week.
By Thijs Bouwknegt
Van den Herik told the IJT that prosecuting pillage could play a critical role in challenging the companies and businessmen who fuel wars while also deterring future abuse.
Why is it necessary to talk about the issue now?
Addressing theft during armed conflict is not something new. Already in the 1907 Hague treaties we see that pillage is prohibited. But what we see now is that the traditional prohibition of pillage is revived, and in a way applied to new and different crime scenes. Whereas traditional pillage concerned more looting of villages, we now deal with the relatively new phenomenon of illegal exploitation of natural resources.
What is a corporate war crime?
In the conference we focus on pillage, which is a war crime. That is also why we speak of corporate war crimes. However, this concept might be too restrictive if we apply it to different international crimes, because not all international crimes are war crimes. Genocide and crimes against humanity are also international crimes in which corporations can be involved. The term corporate war crime is appropriate for our conference, but is not a concept as such.
What kind of crimes are we talking about?
The term corporate war crime as used in our conference relates to pillage, and more specifically the illegal exploitation of natural resources that fuels armed conflicts. But there are also other examples. Recently, a criminal complaint was filed against the Dutch private rental company Riwal. It is alleged that Riwal has aided or abetted, or even co-perpetrated, war crimes in the Netherlands and/or Occupied Palestinian Territories through assisting in the construction of the Israeli wall and constructions settlements in the West Bank. That might be another example of a corporate war crime.
Is there a difference between pillage and financing conflict?
Pillage is an accepted war crime, but financing a conflict as such is not. As conflict is not an international crime, financing one in it self is not an international crime. However, if you finance genocide, or if you directly finance a crime against humanity, that might be criminal. For instance in the context of the Rwanda tribunal [ICTR], we see that the main financer of the genocide, Félicien Kabuga, is also wanted by the tribunal. So financing genocide or a war crime can be seen as aiding and abetting these crimes and thus criminal, but financing a conflict in itself is not a crime.
But what if the finances come from stolen resources such as blood diamonds?
We see that this might be conceived as pillage, but then you have to make the link to the blood diamonds itself.
Is illegal exploitation of resources an African problem?
Natural resources have played an important role in conflicts in Africa, in particular West Africa, Angola, Sudan and the Democratic Republic of Congo. But in other parts of the world we also see a link between natural resources and conflict.
We see it with timber in the case of Cambodia in the 1970s, in Afghanistan in relation to opium production and also in East-Timor, which is very rich in natural resources. So more generally we can say that conflicts are about political power but also about economic gain, and that is obviously not an African phenomenon.
Who are committing these crimes?
There is not just one entity that commits these crimes. Local militia play an important role. We see, for instance, that the International Criminal Court has filed pillage charges against some individuals. But the idea is that local militia as well as corporations and individuals working for the corporations play a role in the crimes. Thus, perhaps people higher up in the production chain can incur criminal responsibility for using those resources.
But the ICC can only prosecute individuals?
Yes. The ICC cannot prosecute corporations. And I don't think the ICC's main task is to deal with business leaders, since they might not be those most responsible for the international crimes described in the ICC mandate.
So then we move to the national level. In general I would say that domestic courts play the most important role in prosecuting business actors, both individuals as well as corporations. Not all states are familiar with the concept of criminal responsibility of corporations, but a significant number of states are, including for instance the Netherlands.
Although these were no corporate crimes cases, we do have a number of Dutch cases involving individual businessmen. Guus Kouwenhoven stands trial for violating the UN arms embargo and smuggling arms into Liberia, while Frans van Anraat was convicted for providing Saddam Hussein with chemicals for the production of Mustard gas.
I think we are now in a new era. Most states have just implemented the ICC into the domestic legislation, so now they have to connect that to the concept of corporate criminal responsibility that already existed. Then we have to see how we apply concepts as guilt in the context of corporations. Prosecutors will have to be creative, and they might then need to be inspired by conferences like this to guide them.
What have been the biggest legal hurdles so far?
The legal hurdles are primarily that some states do not know the concept of criminal responsibility of corporations. So in those states it will be difficult to prosecute corporations, and you will have to go after business leaders.
In states where we do have corporate criminal responsibility it might be difficult to disentangle corporate structures, so this is always quite a challenge. And then there are always huge evidentiary challenges that we also saw in the Kouwenhoven case, which are intricate to international crimes cases.
What would you suggest as a solution?
In an ideal world, the ICC can play a very important role as a model court. It has pillage charges, for instance in the case against former Congolese militiamen Germain Katanga and Matthieu Ngudjolo Chui. These cases might set precedents on how to apply pillage in current day conflicts. Also, by prosecuting pillage they set an example in that they find this an important crime, a serious crime. Hopefully domestic courts follow suit, and they will also take pillage seriously. They will carry the greatest burden of cases, so to say.
Ideally, it would be national courts of perhaps the states where the crimes were actually committed and if not, it can be home states of corporations.
It's important that the ICC has charged pillage in some of its cases. It illustrates that it is an important and serious crime. In the ongoing cases, however, it doesn't set an example of trying business leaders, and that is then for national courts to take up. But if the ICC cases show that business actors are implicated in international crimes, this can also constitute an impetus for domestic prosecutors to act.
Do you think it is a missed opportunity that the Special Court for Sierra Leone did not investigate the blood diamond industry?
Yes. The primary mandate, of course, of international courts is to prosecute those most responsible. But, in addition, they are role models for domestic jurisdictions. And if they take pillage seriously, they might inspire domestic prosecutors. Since we are applying an old crime to new circumstances we need inspirations, we need role models to show us the way.
What about truth and reconciliation commissions? Can their records be used in future cases?
Yes. Perhaps not always directly, but most certainly indirectly. The commissions have played a very important role in terms of raising awareness on the role of the private sector in armed conflict. And more broadly, we also see that NGOs and the media play a very important role in raising awareness generally, but also in concrete cases.
The Van Anraat case, in a way, started with an interview by Van Anraat in a popular Dutch news show. If we look at Kouwenhoven, we see that the NGO Global Witness played a significant role in implicating him, and in making his activities in Liberia known. In the Riwal case, we also see that the media was an important factor in exposing the company's activities in the Occupied Palestinian Territories.
What about settlements?
One of the goals of international criminal law is its deterrent effect. So even if corporations settle or if there is no final judgement, there may be this deterrent effect. Even if you start a case but you don't conclude it - in terms of having a conviction - you may have this deterrent effect and you may have some indirect success.