Archived February 09, 2015 - March 12, 2015

Is the International Community Abandoning the Fight Against Impunity?

In recent years the world has seen no respite in conflict where civilians are being particularly targeted with increased brutality. Reports of the devastation wrought by conflict and terror seem to overtake one another with civilian casualties soaring in Syria, Central African Republic, Gaza, Nigeria, Pakistan, South Sudan, Ukraine, and more.

Especially worrying is that, increasingly, impunity reigns for the perpetrators of these atrocities, and political will and cooperation in upholding the interests of justice seem to have faltered: African governments have vowed to shield sitting heads of state from judicial oversight, and in Guatemala, despite huge efforts by victims and civil society, political forces continue to derail the trial of a former dictator accused of genocide. Meanwhile, the UN Security Council failed to refer the violence in Syria to the ICC, and the ICC Chief Prosecutor, citing a UN Security Council stalemate that can “only embolden perpetrators”, announced the suspension of the Court’s investigation of the genocide in Darfur, Sudan.

These developments have recently prompted ICTJ President David Tolbert to sound a warning that the international community is backsliding on its obligations to protect human rights. To continue this conversation, in this ICTJ Online Debate we ask: Is the international community abandoning the fight against impunity?

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Corporate Impunity: A Startling Ethical Anomaly

James G. Stewart
Assistant Professor, University of British Columbia Faculty of Law

Impunity isn’t a single phenomenon; it means different things from one context to the next. Corporate impunity—by far the most entrenched kind—follows its own separate logic.

Impunity isn’t a single phenomenon; it means different things from one context to the next. Corporate impunity—by far the most entrenched kind—follows its own separate logic. When I first came to international criminal justice fifteen years ago, I confess that I found “the fight against impunity” a slightly blunt slogan that sometimes glossed over important political nuances, a little like Carl Schmitt’s claim that appeals to “humanity” are cheating. At that time, though, I hadn’t seen the effects of corporate atrocities on the ground, or fully appreciated that once stripped of its sometimes simplistic political veneer, impunity entails a major moral anomaly. In the years since, I have come to believe that zero accountability, especially in the corporate realm, says something deeply unsettling about our own ethics, and that pitching these questions at the level of public conscience is likely to be most fruitful.

In the aftermath of World War II, the Allies embarked on a bold experiment. Famously, they set about prosecuting a handful of businesspeople for pillaging natural resources like oil, coal and manganese from throughout Occupied Europe and for supplying weapons to notoriously brutal Nazi groups, who used them ruthlessly. In fact, the Allies’ commitment to this strategy was so intense that it very nearly culminated in a second Nuremberg judgment dedicated solely to “Industrialists”. Strangely, however, modern international criminal courts and tribunals have shown markedly less enthusiasm for the commercial side of atrocity—since the return of international criminal justice in the modern era, the WWII precedents have stuck out like sore thumbs as an area where the modern had abandoned something important in the past. In this instance, perhaps like all instances of impunity, the inconsistency is jarring.

Ironically, commercial implication in atrocities probably spiked over the same period modern international criminal law found its feet. The end of the Cold War certainly sparked the resurgence of international trials, but it also meant that brutal armed groups would have to illegally exploit natural resources within territories they controlled to fund their atrocities, instead of relying on superpower sponsorship to sustain their war-waging capacities. “Blood diamonds” are just the tip of the iceberg; a wide variety of natural resources are implicated, all of which depend on willing foreign businesspeople to act as intermediaries between warlord and market. By serving this role, certain businesses also contribute to the famed “resource curse,” whereby nations richest in terms of latent resource endowment are in fact the poorest, and most prone to violent upheaval.

Despite an abundant body of evidence, the commercial actors responsible remain almost perfectly shielded from justice. In 2003, for instance, a United Nations Panel of Experts named eighty-three predominantly Western companies as implicated in the illegal exploitation of natural resources in the Democratic Republic of Congo. According to the Panel, these companies had helped create “win-win” situations for all belligerents that locked in an unspeakably violent climate for local populations. The Security Council called on states to “conduct their own investigations, including as appropriate through judicial means.” Uganda, Belgium and the United Kingdom established parliamentary commissions to investigate the allegations, the International Court of Justice ruled that the underlying conduct constituted the war crime of pillage, and the then-Chief Prosecutor of the International Criminal Court warned that these actions could land businesspeople in The Hague. And yet remarkably, no corporate accountability followed. This reality bears stressing. As we rightly lament the role of power politics inhibiting accountability of heads of state in Kenya, say, take a deep breath and observe how very nearly all of the most egregious contemporary examples of alleged-corporate war crimes in the extractive industry escape accountability.

Corporations also play a key role in producing what Harold Koh has called “a world drowning in guns.” Weaponry is essential to peacekeeping missions, as well as to state and individual self-defense. But in a frightful number of instances, businesspeople have proved willing to sell weapons systems to unspeakably brutal armed groups, no matter the catastrophic consequences for civilian populations. Alas, accountability again approximates to zero.

A study I undertook several years ago collated 502 documented violations of UN Security Council-imposed arms embargoes in the past two decades, but to the best of my team’s knowledge, only one of these led to any trial, and even then, it resulted in an acquittal.

For all the shortcomings of the Nuremberg process, the Allies at least recognized the massive impact of business on atrocity, whereas modern international and national courts alike are largely content to leave it as the elephant in the room.

The news isn’t all bleak, though—in many respects, the international community’s response to the problem is ramping up from zero. In just recent years: the Special Tribunal for Lebanon has upheld the indictment of a corporation; the African Union has conferred the ability to prosecute corporations on the newly-minted African Court of Justice and Human Rights; the Dutch successfully prosecuted one their own weapons vendors for complicity in international crimes in Iraq; Swiss prosecutors announced the first formal investigation into the giant gold refinery Agor-Heraeus for pillaging Congolese gold; Professor John Ruggie again tabled the idea of a specific convention governing corporate responsibility for “gross” human rights violations (for my initial thoughts, see here); and both the United Nations Office of the High Commissioner for Human Rights and civil society initiated expert groups to study these issues (see here).

After the 10-year deafening silence on these issues, that there is some noise at all suggests that in these ways at least, the international community may not be backsliding.

Notice, nonetheless, how civil society is prominent in many of these initiatives, in ways that add something that I believe Michael Ignatieff may have overlooked—civil society (and public opinion more broadly) have often had an enormous effect on the advent of international trials. When the so-called Morgenthau Plan to undertake mass executions of Nazis and reduce Germany to an agrarian society was leaked to the American public just before the end of WWII, for instance, the outcry from the American people was probably determinative in tilting the U.S. government towards trials at Nuremberg instead. Curiously, when I speak to war crimes prosecutors from national systems about prosecuting businesspeople and/or their corporations for international crimes now, many say that they need an equivalent public outcry.

This brings us to ethics, in the sense of public conscience, rather than state politics or international relations. In the initial years of modern international criminal justice, I’d often hear what I’ve come to call “the Geneva Absurdity”: “If you kill a single person you go to prison, if you kill ten people you go to prison for the rest of your life and in many places you’re subject to capital punishment, but if you kill 10,000 innocent civilians you’re invited to Geneva for peace talks.” Through this ethical slogan, impunity’s moral absurdity is laid bare. Because I suspect that the slogan proved potent in lifting the global impunity barometer off absolute zero, I wonder if “the fight against impunity” needs to be repackaged into more specific ethical absurdities, precisely in order to acknowledge that not all types of impunity follow the same logic. If pressed to invent a corporate variant now, it might go something like this: “What's the best way to get away with atrocity? Incorporate. It’s even more effective than becoming President of your country.”

These sorts of startling ethical anomalies can be politically powerful, too. The ICC justifies its exclusive focus on African defendants by citing the number of victims involved in African contexts. There’s an assumption in this explanation that’s false, though—the argument assumes that only Africans are responsible for atrocities in Africa. That fallacy overlooks the long history of foreign corporations plundering African resources that dates back to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without asking any questions. Dealing with the anomaly will make for greater ethical coherence. In fact, if the ICC Prosecutor corrects for this fallacy, she could also (partially) diffuse the African Union’s critique of the ICC by insisting that when western nationals are implicated in atrocities of this magnitude in Africa, the Court will hold them responsible, too. If these trials take place in national instead of international courts, they would allow this generation of Europeans to insist that the colonialism our forbearers enacted across three quarters of the world has truly ended.

Ultimately, corporate accountability may also be a good example of the “innovation” Aryeh Neier says is necessary for the struggle against impunity as a whole. Take rape in the Congo. Even with the expressed concern of Hillary Clinton, conferring Dr. Denis Mukwege with the African of the Year Award for his outspoken criticism, the establishment of mobile courts and the role of the ICC hovering above, it seems difficult to imagine that these initiatives have had a major effect on the horrifying rate of sexual violence in the country. By focusing on the responsibility of the arms vendors who provide weapons to these groups, however, there may be a way of tying the military objectives of the perpetrators to the need to stop rape, thereby offering new incentives for armed groups to deal with the problem themselves. These new prosecutions of weapons vendors would say to rebel groups, “If your men don’t stop raping people, you won’t get weapons because your supplier will fear becoming implicated in these crimes, and without weapons, you’ll lose the war.” Reality will always be more complicated than this simplistic model, but it has unexplored potential. To end with a final ethical anomaly: “Charles Taylor was convicted of rape for supplying weapons to rapists. Why not businesses?”

Professor James G. Stewart in a former Appeals Counsel for the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and presently, a Senior Legal Advisor (part-time) to appellate judges at the Extraordinary Chambers in the Courts of Cambodia. He is the author of Corporate War Crimes: Prosecuting Pillage of Natural Resources (OSJI, 2010). His work on the topic of corporate responsibility for international crimes was awarded the Cassese Prize as well as the leading prize in Canada for pre-tenure academics across all social sciences. These views are his own.

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