Accountability for Economic War Crimes

Holly Dranginis is a Policy Analyst for the Enough Project

In January, top Lord’s Resistance Army (LRA) commander Dominic Ongwen surrendered in the Central African Republic and appeared before the International Criminal Court, charged with war crimes and crimes against humanity, including murder and enslavement in Northern Uganda. In June, the case against Congolese commander General Bosco Ntaganda is set to continue at the International Criminal Court (ICC), where the former rebel commander is charged with committing rape and sexual slavery in the Democratic Republic of Congo (DRC). Both individuals are linked to organizations accused of running illegal financial networks – well-oiled machinery for extracting some of the region’s most lucrative wealth, including minerals and ivory. Ntganda and Ongwen are in the grips of authorities with the power to prosecute them, marking a win for international criminal justice, yet no one faces charges for the massive thievery that underwrote their atrocities.

Prosecutors and investigators committed to international criminal accountability have an untapped opportunity to improve accountability and peace building by prosecuting individuals and companies for the war crime of pillage. The theft of natural resources in the context of armed conflict helps fund the violent crimes typically addressed in international courtrooms, and constitutes the war crime of pillage under common law and the Rome Statute. The crimes are undergirded by a complex network of criminal state and non-state actors. As a human rights defender in eastern Congo told me recently, “Most of the armed groups are led by people who are trafficking natural resources. Since the 1960s, armed rebels have been exploiting minerals, but the armed groups don’t do it alone. They collude with the national authorities and neighboring countries.”

In regions rich with natural resources and beset by armed conflict, members of transnational criminal networks turning profits through theft of natural resources are the enablers, brokers, and patrons of atrocity. For armed groups like the LRA in the Central African Republic and now-dissolved M23 in DRC, this profit would be impossible without their ability to access international markets in a broad climate of impunity. Indeed, dozens of armed groups and army factions in the Central African region still vie for control over mineral profits, meanwhile committing crimes of sexual enslavement, illegal taxation, and forced labor. Without prosecuting the war crime of natural resource pillage, criminal accountability will be incomplete, and efforts to build peace will falter.

Accountability for atrocity crimes in resource-rich countries has gained significant ground in the past two decades, particularly with the advent of the ad-hoc tribunals and the ICC. In the case of the DRC, the ICC has had seven active cases, and Congo’s domestic military justice system has prosecuted numerous war crimes cases, developing some helpful jurisprudence and experience. Sexual violence crimes in particular have recently gained attention. Once a blind spot in atrocity crime prosecutions, the ICC’s Chief Prosecutor, Fatou Bensouda, has tackled the issue head on, creating a new comprehensive strategy to improve the prosecution of sexual violence crimes.

The international justice community needs a similar effort to end impunity for natural resource pillage and better investigate links between illegal financial networks and atrocity crimes.

Curbing armed group and terrorist financing has increasingly captured the attention of policy makers, spurring new supply chain regulations, tighter border policies, innovative military strategies, and sanctions regimes targeting natural resource trafficking. But criminal prosecutions must also play a role. Unlike transparency requirements, sanctions, or military operations, criminal prosecutions can expose how criminals operate, create new legal precedent, provide a public forum for testimony about the links between trafficking and violence, and help restore stolen wealth and dignity to affected communities. As a Congolese human rights defender told me in Goma, “Women are raped in minerals-rich areas – and with respect to justice, profits take priority. There is less justice for atrocities committed in relation to mining.” Prosecuting financial crimes would acknowledge the intersections between mining and violence send a message that these crimes won’t be tolerated.

The few cases that have gone forward in pursuit of linking war crimes with natural resource exploitation provide momentum. In the case against former-Liberian President Charles Taylor, diamond pillage was a central component of prosecutor’s attempt to show Joint Criminal Enterprise. As former prosecutor on the case, Mohamed Bangura, said, “The scale of the diamond issue was really the cause of the protracted nature of the conflict. During the 10-year conflict, Sierra Leone is believed to have been losing 60-80 million dollars in diamond revenue annually [at the peak of the violence.]” Taylor was never convicted of pillaging diamonds, but the prosecution’s efforts revealed lessons for future pillage cases, including the importance of analyzing local land ownership laws and amassing evidence diamond pillaging early on investigations. “By failing to charge pillage of diamonds, all of that activity was left without any form of accountability, in a sense,” Bangura said.

Small-scale, episodic theft will not be sufficient to serve justice – prosecutors should treat pillage as a complex organized crime, exposing the networks and business entities entangled in multi-million dollar illegal deals, then expose their links to atrocity crimes against civilians.

Multiple venues have jurisdiction to carry out pillage cases, including the ICC, Congo’s military justice system, and domestic courts by way of the Geneva Conventions and the Rome Statute.

But like prosecuting other atrocity crimes, advancing justice for pillage will take far more than jurisdiction and a sound legal framework. In eastern Congo, for example, lawyers, investigators, and human rights defenders – including survivors of atrocities – encounter major barriers to gathering evidence and pursuing independent cases. These practitioners – and their protection – are critical to effective investigation and prosecution of pillage. A lawyer representing atrocity victims in Goma said, “We’ve faced years of threats, the military following us. Prisoners contacting victims.” Another local attorney told me, “It’s hard for me to go to the territories as an investigator of these financial crimes. I want to pursue investigations, but I need protection.” The investigators, lawyers, and witnesses living in regions where the theft occurs are critical to the success of cases, and they need better protective measures and support.

Despite challenges, the tools for ending impunity for natural resource pillage by prosecuting individuals and companies for the crime are accessible, and relatively simple. The ICC’s Office of the Prosecutor should revive its financial crimes section, appointing specialists in financial forensics. It should develop a comprehensive policy on how to use financial forensics to improve the prosecution of atrocity crimes cases and natural resource pillage. In the DRC, the peacekeeping mission’s justice unit and prosecution support cells should assist their national counterparts in the military justice system in gathering evidence – physical, documentary and testimonial – on natural resource pillage in conjunction with other atrocity crimes investigations. Finally, donor countries, the ICC, and the national government should invest in better protection for lawyers and witnesses pursuing evidence of pillage.

The millions, sometimes billions, of dollars flowing to armed groups through calculated, large-scale armed robbery in the midst of war both motivate and fuel terror and violence. It is time these activities are recognized and prosecuted as war crimes so that countries at war are no longer places where illicit trade can thrive with impunity.