Category Archives: International Criminal Justice

Reply to Barry, Gooch, Le Billon, Okowa, Stewart, and Taylor

Leif Wenar is Chair of Philosophy and Law, King’s College, London. His most recent book, Beyond Blood Oil: Philosophy, Policy and the Future, combines five essays from field leaders in political theory, philosophy and energy politics.

I would like to give thanks to James Stewart for making Blood Oil part of his excellent symposium. I have admired Stewart since I first met him at the Peace Palace in The Hague in 2010, at a major conference centered on his work on pillage of natural resources.[1] His conference was full of luminaries of international law and politics (it is where I first met two outstanding judges of the International Court of Justice, Rosalyn Higgins and Abdul Koroma), and Stewart’s research was an ideal catalyst for intense discussions over the use of international law in the fight for justice.

I would also like to thank the other commentators sincerely for their generous attention and kind words. Perhaps I might just say how much I admire each of them. Phoebe Okowa is the author of important work on international environmental and criminal law, and also the author of fine articles on the laws governing natural resources in situations of armed conflict. Philippe Le Billon is among the world’s leading experts on natural resources and conflict; I have learned much from him, including from his books such as Fueling War and Wars of Plunder,and cite his work many times in Blood Oil. Christian Barry is one of the world’s top moral and political philosophers, an expert on justice in international trade and complicity, and the co-author of the much-anticipated Ethics for Consumers.

Very special thanks are due to Simon Taylor and Charmian Gooch, whose organization, Global Witness, has changed the way I see the world. I began working on the resource curse, in 2006, as a skeptic. Although I saw the terrible ‘paradox of plenty’ in so many countries, like some of the commentators (and perhaps some readers of this symposium), I was doubtful that much could be done about it. The interests opposing action were too strong, it seemed, and the status quo too entrenched. Global Witness helped to turn me into an optimist. Again and again Global Witness has won inspiring victories against the powerful, and Blood Oil tells many of the stories of their successes.

The Khmer Rouge, Charles Taylor the tyrant of Liberia, Sierra Leone’s blood-diamond funded militias, Robert Mugabe’s military thugs, Equatorial Guinea’s dictator Teodoro Obiang, Burma’s generals, Muamar Gaddafi—all of their injustices have been exposed by campaigns led by Global Witness. The bribes by the oil companies Shell and Eni that appear to have cost the Nigerian people over a billion dollars—and the corrupt deals of Dan Gertler, allegedly one of the worst in the Congo’s long history of foreign exploiters—are also now known because of Global Witness and other determined campaigners. Because of Global Witness and its partners, whole industries in the West have made their dealings with resource-rich foreign governments more transparent, and are also more diligent in keeping conflict minerals out of their supply chains.

Indeed whole continents have changed their legislation—the EU has now mandated public registers of beneficial owners of companies, which will help to crack down on abuse of the anonymously-owned companies that facilitate tax evasion, money laundering, and corruption. Global Witness has been a leader in this campaign (and—as their exposé on ‘60 Minutes’ showed—there is still much more to be done). And Global Witness is now increasingly turning attention to environmental and climate issues, as when it revealed the secret payments that an oil company made to armed Congolese rebels, to get drilling access to Africa’s oldest and most biodiverse national park.

Simon Taylor and Charmian Gooch have helped to build Global Witness into an effective, respected, and trusted international organization, a huge accomplishment. Global Witness has brought injustices to the world’s attention that had been under the radar, challenging ‘business as usual’ and inspiring others to launch their own campaigns. As I’ve gone around the world for the last dozen years giving talks on the resource curse, people have often asked me which organizations they can support—who is ‘fighting the good fight’ for change. I always say to support Global Witness. Global Witness has shown that a relentless focus, and an implacable sense of justice, can win.[2]

Summary of Blood Oil

Blood Oil is a big book. For those who are coming to this material for the first time, it may be helpful if I start by setting out its position quickly, without the nuances or qualifications, pulling together (and occasionally correcting) some points from the summaries of the contributors.[3]

The book is about power and natural resources. Violent, coercive, and corrupt men are today selling off their countries’ resources, gaining enormous unaccountable power from the money the world gives them in return. Some of these men use this unaccountable power to oppress their people, others to start brutal wars, others to maintain themselves in luxury while their populations endure grinding poverty.

To give a few suggestive correlations, most of the authoritarian regimes, most of the civil wars, most of the most corrupt governments, and most of the hunger crises in the world today are in resource-rich states. Most of the world’s refugees are today fleeing from these states. And, soon, most of the world’s extreme poverty will be in states that export oil, metals, or gems. Resources can indeed be a curse.

The unaccountable power that these men gain from selling natural resources spells disaster for the people that they torture, and attack, and neglect. And the power that the world gifts to these men is so enormous that it often spills across borders, and indeed around the world. Most of the West’s major foreign threats and crises for the past two generations have originated in resource-exporting states. The unaccountable power of resources is bad for ‘them’ there, and it’s bad for ‘us’ here in the West too. Because of this unaccountable power, we are all ‘resource cursed.’

What is the ultimate source of the unaccountable power of these violent, coercive, and corrupt men? Ultimately, it is the world’s consumers, paying every day for the products that are made from (and transported with) the natural resources that these men sell off from their countries. Ultimately, consumers are paying for the curses that fall back on them.

And why? Why are we consumers sending our money to men responsible for such suffering and injustice? The book’s answer is a surprise. The main culprit is a legal relic from the 17th century, that we all take for granted, embedded in the domestic law of every state. This is the rule that makes it legal to buy natural resources from whoever in a foreign country can control the extractive sites by force.

So, for example, years ago when Saddam Hussein’s junta took over Iraq in a coup, every state’s default law made it legal to buy Iraq’s oil from that junta. And then years later, when ISIS took over some of those same wells by force, it became legal to buy Iraq’s oil from ISIS. (That’s why sanctions had to be imposed—to make it illegal to buy oil from ISIS.) This legal rule is called ‘effectiveness’ for natural resources—essentially, effectiveness means that ‘might makes right.’

This archaic legal rule makes no common sense. If an armed gang takes over a Shell station in your country, should the gang get the legal right to sell off the gasoline and keep the money? It also violates a primary principle of any market order, to protect property against forceful seizure. In this way, ‘might makes right’ is a standing challenge to the rule of law.

As the book shows, the rule of effectiveness has been abolished in many other areas of law over the past 300 years—indeed, this progressive abolition of effectiveness has been a major part of the moral progress of humankind. The slave trade, colonial rule, apartheid, even ethnic cleansing and genocide: all of these violent practices used to be permitted under international law, which was often little more than the legitimation of power. Today, all of these things, when they happen, are violations of international law.

In fact, the world has even abolished effectiveness for a single natural resource: diamonds. Because of the campaigning of Global Witness and its allies, it is now illegal in most states to import diamonds that have been sold by armed groups. We’ve abolished the legal rule of ‘might makes right’ for diamonds, the question is whether we could do this for oil, for metals, and for other gems too.

What gives great hope for the abolition of effectiveness for all natural resources is that a better principle for trade in these resources is already widely accepted worldwide. This is the principle that every country belongs to its people. Under this principle, each country’s resources start out as the property of the people, and any government that wants to sell off (or privatize) those resources must be minimally accountable to its citizens when it does so.[4] That is, citizens must be able to find out the government is doing with their resources, and effectively to protest this if they don’t like it. Anyone who sells off a country’s resources without being minimally accountable to the owners—the citizens—is literally selling stolen goods.

This legal principle that ‘the resources belong to the people’ was first pressed by countries in the Global South in the 1950s, and it is now proclaimed in major treaties to which almost every state is party. Both of the main human rights treaties, for example, declare in their first article that ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources.’[5] States with 98% of the world’s population are already party to one of these major treaties. More, politicians and popular majorities in every world region regularly endorse the principle that every country belongs to its people. At the level of ideas, ‘popular resource sovereignty’ has already won.

Popular resource sovereignty requires a government to be accountable to the people for the country’s resources. It is the best solution to the resource curse. The power that natural resources bring cannot be made accountable from outside the country. We know this from the West’s failed attempts to control the power of oil through alliances, invasions, and sanctions over the past 40 years, especially in the Middle East. The power of natural resources can only be held accountable from within the country, by governance that is accountable to citizens. We know that popular resource sovereignty is the solution to this problem, because countries that had minimally accountable governments when resource revenues began to flow (like Norway and Botswana) have not suffered the resource curse.

Today, every importing state is maintaining a legal rule that violates popular resource sovereignty: the rule of effectiveness. Every state’s default law says, ‘Whoever can control the extractive sites by force—we will make it legal to buy the resources from them.’ This is the rule that is driving repression, conflict, corruption and more in resource-cursed states. It is the rule that importing states can now change, to respect the human right that is popular resource sovereignty.

The book’s main policy proposal is that resource-importing states pass a Clean Trade Act, which would make it illegal to buy natural resources from anyone who is not minimally accountable to the people of their country. Progressively and responsibly, importing states can get their consumers out of business with violent, coercive, and corrupt men abroad. Ending today’s bad business will not end the resource curse overnight, but it is the most that states can do to stop the damage that their laws are doing to resource-exporting countries today. It is also the most that states can peacefully do to take a principled stand for the rights of all peoples, everywhere.

Readers may need reason to believe that this legislation is politically realistic. I’m happy to help with the optimism. Clean Trade is now a registered charity, with outreach to governments, investors, lawyers, and consumers.  And we’ve already gotten a Clean Trade Act onto the legislative agenda. Brazil, the world’s fifth largest country and a leader of the Global South, has a Clean Trade bill pending in its senate that would ban all imports of oil from unaccountable governments, and also prohibit its national oil company, Petrobras, from entering into new contracts with those governments. If Brazil can introduce a Clean Trade Act, such progress should be possible in other countries too.

Beneath the Status Quo

I’ve presented the ideas of Blood Oil hundreds of times now, on every continent except Antarctica, and I’ve found a curious thing. Even though much of the book is about the law—‘the rules that run the world’—it is often lawyers who have the hardest time seeing what it is saying. Having considered this for a while, I think I understand better why. This book challenges the status quo understanding of the global legal order, which is the domain that lawyers work within every day. The pull of the status quo is so strong that even lawyers who read the book seem to pass over sections, or whole chapters, when they describe what it says in their own terms. There is a great temptation to frame the whole thing within the familiar old debates, that lawyers know so well.

I have real sympathy for these lawyers: understanding the deeper ways that the world works was also difficult for me at first. And I believe that these lawyers (and indeed all the commentators in this symposium) share the same ultimate values and goals: as Okowa says in her essay, we all believe in peoples’ ‘dignity and integrity as sovereign peoples,’ and we all support ‘the bedrock principles on which our shared security rests… the sovereign equality of peoples and the overriding imperatives of maintaining peace and order.’

Yet since some readers may be coming to these ideas for the first time, it’s important that we take these debate out of their familiar tracks. So let me say a few things clearly at the outset. Blood Oil does not recommend sanctions. It doesn’t advocate coercing anyone, or intervening in the affairs of any state. It’s not about promoting a freestanding ‘right to democracy,’ and it doesn’t aim at spreading Western ideas to non-Western countries. It doesn’t recommend military invasions. It does not claim to speak for foreign peoples, or somehow to know what citizens of other countries want. And its policies have nothing to do with subordinating foreign peoples or managing the affairs of other countries from afar.

Those are all the old debates, within the terms of a familiar legal status quo. Our questions are deeper: what explains the status quo itself, and what can be done to change it. That’s what Blood Oil is about. Once we dig down to the subterranean channels of power in the global economy, we see things differently. In fact, those old debates look upside-down. The truth turns out to be that we are now intervening in the affairs of other countries—in very damaging ways—and that the world’s future would be better if we stopped intervening as we’re doing now every day.

Here’s the status quo. Authoritarians run oil states like Russia, Libya, Saudi Arabia, and Iran. Given this, the West has tried to control such authoritarians in many (often unjust) ways—sanctions, invasions, alliances, and sending secret agents to undermine democratic movements. But why are these authoritarians there in the first place?

Massively corrupt officials fleece the citizens of resource-rich states from Azerbaijan to Zimbabwe. Given that these corrupt officials are in power, Western corporations have unjustly bribed them to gain access to the resources. But why are these corrupt officials there in the first place?

Grueling conflicts have racked many resource-rich states. As Okowa wrote in 2013,

One of the defining features of the many recent conflicts of the past three decades, especially those in Angola, Sierra Leone, Sudan, Liberia, and more recently in the Great Lakes region of Africa, is the centrality of illegal exploitation of natural resources in causing and sustaining these conflicts. Many of these are not ideologically driven wars commanding popular support or addressing acknowledged grievances of the population. Instead they have as their focus access to the resources which, in addition to enriching the warring parties, also provides a continuous source of revenue for funding the war… Exploitation of natural resources by insurgents and governments alike has played a pivotal role in a number of protracted armed conflicts of the last two decades….They have all been financed, sustained, and exacerbated by illegally sourced minerals and other natural wealth of the territories affected.[6]

Given that these conflicts are occurring, foreign governments have tried to come up with ways to contain them and foreign corporations to exploit them. But why are the conflicts happening in the first place? Why is the status quo so oppressive, corrupt, and violent?

There are many reasons. Authoritarianism, corruption, and conflict are not only about resources, and of course these things occur in resource-poor states too. As Blood Oil says, ‘We live in a multivariate world. Many factors beyond the resource disorders have contributed to the disasters that end up in the headlines. Nothing explains everything; human affairs have more features than any one vantage can survey.’[7]

Still, one primary driver of these phenomena is the ancient rule of effectiveness. Because of effectiveness, resource-rich countries are much more likely to be authoritarian, highly corrupt, and at war with themselves. This rule explains much of the status quo—and it’s within this status quo that Western states and corporations then make their moves. The old debates are about those moves—and within these debates, I agree that what Western states and corporations have done has often been unwise and unjust. Yet we can go deeper than those old debates. The new debate is how to understand the status quo itself, and then to transform it. How can ‘might makes right’ be replaced with a better global rule, will stop driving authoritarianism, corruption, and conflict in the first place?

It’s Not about Political Recognition

Blood Oil challenges a major orthodoxy in global trade—the rule of effectiveness, by which every state makes it legal to buy natural resources from foreign authoritarians and armed groups. However, there is another part of today’s legal orthodoxy that the book does not challenge at all. These are the rules on state recognition: the rules about when states must recognize other states, and governments must recognize other governments, as legitimate. International law requires states to recognize each other’s ‘right to rule,’ and (contrary to what both Stewart and Okowa suggest) Blood Oil does not question these laws on political recognition at all. For ‘us’ in Western countries, for instance, who legitimately rules Russia or Iran or Angola is none of our business; the book doesn’t question the Russian, Iranian or Angolan governments’ ‘right to rule’ at all.

What Blood Oil does challenge is a different legal decision that states make: not political recognition, but commercial engagement. Given that international law requires states to give each other political recognition, there is a further question. Who in foreign countries will states make it legal to engage with commercially? Every state has to decide for itself from whom in other countries it will be legal to buy natural resources. These are the decisions that states should change.

This is the argument made at length in Blood Oil Chapter 7, ‘How Might Makes Right.’ Just because Charles Taylor of Liberia once forced a law through the parliament saying that it would only be legal to buy Liberia’s resources from him, that didn’t decide the matter for other states. Each sovereign state must set its own domestic laws on commercial engagement for natural resources. As the book says,

There’s a mental short circuit that can cause a blind spot here. The short-circuited reasoning goes like this: ‘Passing laws is what sovereign states do. And international law requires all states to recognize other states as sovereign. So international law requires all states to respect the laws of other states within their own laws.’

The protection against this short circuit is a crucial fact: political recognition does not require commercial engagement. Whoever rules in a foreign country and whatever laws they pass, the international law of recognition does not require any country to align its property laws with the laws of that country… Even during full political recognition, one state can refuse to align its property laws with those of another by forbidding its persons to buy what the foreign law says can be sold.[8]

This is clearest with sanctions. When a state imposes oil sanctions, for instance, it is changing its domestic laws so that it becomes illegal for its nationals to buy any oil from the sanctioned state. This is entirely a commercial matter, and has nothing to do with political recognition of the sanctioned state or government. Indeed, the book describes a case during the uprisings of 2011 when the United States changed its law to make it illegal for Americans to buy Libya’s oil from the government that it recognized politically—and even made it legal for Americans to buy Libya’s oil from rebels that no state recognized politically.

Whether or not this US policy was a wise one, the crucial legal point is that ‘who will it be legal for us to buy foreign resources from’ is a matter that each state must decide for itself. And again, this is entirely separate from the international law of recognition. Under the international laws of recognition, the United Kingdom must acknowledge, for example, the Russian government’s right to raise taxes, to defend its borders, and to issue postage stamps. Yet here is a separate, commercial question, which is not settled by any international law: will Britain make it legal for British persons to buy Russia’s oil from those who are now selling it? That’s a question for Britain’s own law to answer.

Blood Oil asks all states to stop answering this question with effectiveness, the rule of the slave trade, colonialism, and apartheid. It asks states instead to guide their commercial engagement by human rights.

Popular resource sovereignty is a human right. As above, this principle is affirmed in both of the major human rights treaties: the human rights Covenants of 1966. In fact, the rights of peoples to their resources is affirmed twice in both Covenants—these treaties affirm popular resource sovereignty more than they affirm any other human right. Popular resource sovereignty is also affirmed in major regional human rights instruments, like the African Charter on Human and Peoples’ Rights. As Okowa in 2007 eloquently explained one of the doctrines that helped to form this human right, it provides

An international standard against which the legality of natural resource exploitation by all parties to a conflict stands to be assessed.… If the terminology of peoples’ rights in the 1966 Covenants and in the African Charter is significant, then both must be regarded as imposing a set of justiciable precepts, in the form of limitations on what the government of a territory may do with resources of that territory. These instruments are clearly in force as binding treaties, creating obligations.[9]

By passing a Clean Trade Act, an importing state will be doing nothing more than to change its own domestic laws so that they respect human rights. As Blood Oil says,

a Clean Trade Act is less dramatic than more familiar foreign policy options. A country passing this Act will be changing its own laws, enforced on its own soil, regarding its own terms of trade. Not a single bomber or soldier need be sent abroad to implement these policies.

Moreover, a Clean Trade Act does not challenge the right of any regime to rule its country. An enacting state need say nothing about the legitimacy of foreign leaders, and need make no changes in the list of states receiving its diplomatic recognition…. Political recognition and commercial relations are distinct, and passing a Clean Trade Act only alters commercial relations. Leaders of a Clean Trade country can say that who holds the presidency of a resource-exporting country is ‘none of our business,’ while also saying that today its president qualifies for ‘none of our business.’[10]

As I hope this make clear, Clean Trade policy is not about ‘promoting democracy’ by challenging the right to rule of non-democratic regimes. Indeed, even within the domain of natural resources, Kuwait (for instance) is currently just ‘above the line’ in terms of minimal accountability to its citizens for resource decisions—and few would call Kuwait a democracy. Clean Trade is about power: about states ending their own contributions to the empowerment of unaccountable actors abroad.

Not Sanctions, Not Interference, the Opposite of Intervention

Stewart and Okowa worry about the effects of sanctions, and also raise concerns that a Clean Trade Act would amount to interfering with, or even neo-colonial intervention in, in the domestic affairs of other states. I share their concerns about sanctions, and I share their dismay at neo-colonial policies. Yet those worries are within the familiar old debates that accept the status quo—debates about foreign ‘state-building,’ and about Western military intervention to ‘build democracy’ abroad. Once we see what happens when states choose effectiveness, those old worries get turned on their heads. As Blood Oil says,

Determined action to reform the global resource trade must choose its tools wisely. The sharp-edged tool of military action to force democratic change is, as we’ve seen, not fit for this work. Even putting aside the efficacy of bombing for democracy, this is too much like the colonizing campaigns of the past to build the trust that the West now needs. Western nations should instead work to align their policies to fit their own principles— first by powering down their own destructive laws like effectiveness for resources. The first tools the West needs are not those for state-building; first turn off the West’s machines that are now state-razing.[11]

Let’s start with sanctions. Stewart and Okowa are right to be concerned about sanctions; but a Clean Trade Act is not sanctions. Sanctions aim to punish a specific enemy. A Clean Trade Act does not aim to punish anyone. Rather, it takes a principled stand for all people’s rights, across the board, for allies and adversaries alike.[12] The leadership of a country enacting a Clean Trade Act can say to foreign leaders,

‘We do not challenge any of you, as always we continue to recognize your right to rule your land. On matters beyond resource trade, our relations can go on as before. All we are saying is that we believe that we have no right to buy resources from you—no right, because by the principles that you and we both endorse, the owners of those resources cannot be authorizing their sale. By passing this Clean Trade Act we are building respect for the human rights of all peoples into our laws—the rights of the Saudi people, of the Russian people, of the Iranian people, of the Angolan people—the rights of all peoples, worldwide.’

Nor would a Clean Trade Act be an intervention, or an interference in the internal affairs of other states (much less would it be, as in Okowa’s more pungent descriptions, ‘coercive and intrusive,’ ‘subordination,’ ‘degrading tutelage,’ or ‘vigilante justice.’) In fact, the situation is exactly the reverse: it is our countries today who are doing the meddling. As Blood Oil explains, ‘It would be dark humor for any country with an effectiveness-based trade policy to charge a Clean Trade country with ‘political meddling.’’ To make such a charge, a leader of an effectiveness-based importing country would have to make a speech like this one:

‘Today, we choose to take Equatorial Guinea’s oil. In exchange, we choose to give hundreds of millions of dollars to a brutal dictator, knowing that the money will help him to keep power by paying for soldiers and secret police and torture chambers for political prisoners. However, if mercenaries are tempted by our money and can assassinate Obiang tomorrow, we will buy oil from whoever hired the mercenaries and assumes the presidency. We are not meddling in the politics of Equatorial Guinea. It is those who buy no oil who are meddling.’

This is not compelling… It is countries that send large sums to ‘whoever can be most coercive’ that are interfering in the internal affairs of other nations and meddling in their politics. Countries that refuse to send large sums to authoritarians and militias are the ones that are not interfering, not meddling.[13]

This is an important point, so let’s do a thought experiment to idea the point home.[14]

Saudi Arabia banned slavery in 1962—but imagine that it hadn’t. Imagine that Saudi domestic law today says that the Saudi state has the legal right to sell Saudi slaves to foreigners. In this case, should the United States set its domestic law so that Saudi slaves could be bought and owned within its own borders? That’s the equivalent of today’s rule of effectiveness for natural resources.

Now let’s imagine that the US has long had a law allowing Saudi slaves to be bought and owned within its own borders. And imagine that, after determined activism, the US then enacts a law banning the importation of Saudi slaves, and the sale of Saudi slaves on American territory. Would this new law be interfering in Saudi internal affairs? Would this law be a coercive and intrusive foreign policy, a neo-colonial intervention that manages Saudi Arabia from afar? Would it be an act of vigilante justice, subordinating Saudi Arabia to a degrading foreign tutelage?

I can’t believe that the commentators, or anyone today, would believe so. Nothing in international law (of recognition, or anything else) requires any state to change its laws to align with the laws of a state that sells slaves. Any country that has banned the importation of foreign slaves has merely aligned its own laws with human rights—with the human rights of all people to be free. And this is all that a country that passed a Clean Trade Act would be doing. Nothing in international law requires any country to align its own laws with the Saudi laws that say that the Saudi state has the right to sell off Saudi oil without accountability to the people. And in fact, the human rights treaties that nearly all states (including Saudi Arabia) have ratified affirm the rights of the people over their resources.[15]

It is true that the crime of slavery is worse than the theft of a nation’s resources. Yet there is a difference in the other direction too. Britain’s campaign to ban the Atlantic slave trade in the 19th century was a one in which the most economically advanced Western country imposed ‘its’ values on other countries. By contrast, the campaign for the legal recognition of popular resource sovereignty was a campaign of the Global South. Starting with Chile in 1952, it was ‘Third World’ states—against strong opposition from the West—that insisted on the legal principle that a country’s resources belong to its people.[16] The campaign for popular resource sovereignty was an anti-imperialist campaign waged by developing countries trying to resist the exploitation of their natural resources by Western corporations. The historic success of this campaign by the Global South can now be leveraged to advance the rights of all peoples today.

Both Stewart and Okowa rightly condemn neo-colonialism. Yet it is the status quo—which Okowa in particular defends so passionately—that is more vulnerable to this charge. It has often been noted that in the end the Western imperial powers were not so unhappy about ‘losing’ their resource-rich colonies, which had become troublesome and expensive to govern from afar.[17] The imperialists saw that after independence, they could still extract the natural resources that they wanted from the colonies, without having to bear the costs of rule them. They would just need their corporations to bribe the post-independence strongmen to get the resources—or their corporations might need to pay off armed groups when civil wars broke out.

In this history, Western imperialists were happy enough to see their colonial rule replaced by authoritarians, corrupt officials, and civil conflict—because their countries still got the resources out. ‘Independence’ merely reduced their expenses. Those who defend today’s status quo by endorsing the law of ‘might makes right’ must defend its interference in the internal affairs of resource-rich states, partly for the benefit of the former colonial powers.

Principles and Consequences

Passing a Clean Trade Act is a dramatic thing for states to do. Though implementation could be gradual, and good diplomacy will be essential, passing an Act will be a major change in international trade. Running through all the commentators’ remarks is an understandable concern about the consequences of making such reforms. Will it be worth it for states to make a stand on principle? Are there unintended consequences that might cancel out the benefits of making these reforms?

These are crucial questions. Blood Oil carefully considers the consequences of the policies it recommends, using the empirical literature to project those consequences as responsibly as possible. Yet the book also raises on one point. When we wake up tomorrow, our country will have a law in place saying who it’s is legal to buy natural resources from. Our choice is not ‘Clean Trade or not Clean Trade.’ Our choice is ‘Clean Trade or effectiveness.’ And those who choose effectiveness for tomorrow must also take responsibility for the consequences of their choice.

Here is a summary passage from Blood Oil, based on research by Michael Ross, that highlights a few of the consequences of the choice of effectiveness over the past forty years.

For forty years, oil states have been noisy distractions to the quiet successes of the developing world. While non-oil states have generally been getting richer, freer, and more peaceful, the oil states are no richer, no more free, and no more peaceful than they were in 1980. Many oil states have even gotten worse—Gabon’s average income fell by almost half over the quarter century from 1980; Iraq’s fell by a full 85 percent. Long internal conflicts have ravaged countries like Algeria, Angola, Colombia, and Nigeria. Two headline figures are that these oil states are 50 percent more likely to be ruled by an authoritarian government, and poorer ones are twice as likely to experience civil war, as non-oil states. The oil states are also more financially opaque and volatile on average than non-oil states, and… they allow women fewer opportunities to enter politics or to work outside the home.[18]

These are just some dimensions of the resource curse on exporting states. Those who endorse effectiveness for tomorrow must accept the consequences of their choice for the people of these states tomorrow. Indeed, we can expect these consequences now to get worse. Because of climate change, the oil-exporting states around the equator will be getting hotter, and hungrier, and thirstier, just as they go through a youth bulge and these regions fill up with more powerful explosive and drones. Those who choose effectiveness tomorrow must consider that their choice may bring a future that is even worse than the past.

More than this, it is vital to understand the range of reasons there are to abolish effectiveness for natural resources. When I speak to people in government in Washington and London, we mostly don’t talk about human rights. These conversations are all about national security. Effectiveness is not only bad for ‘them there.’ It also seriously threatens ‘us here.’ (This is the argument of Chapter 6 of Blood Oil, ‘Curses on Us.’)

Let’s head backward in time through the last forty years, and look for common factors in the West’s major foreign threats and crises. Recently we have seen Putin meddling in Western elections and invading a European country, Ukraine. From 2014, the Syrian conflict swelled a refugee crisis that fired nationalist populism in Europe. Next, think of ISIS, with its beheadings and its sexual slavery. Then Gaddafi, who sponsored terrorists from the Munich Olypics attackers to the Lockerbie bombers. Think of the terrorist attacks in London on 7/7/05, and in America on 9/11/01, which were planned by Al Qaeda. Before Al Qaeda, Saddam Hussein destabilized the Middle East  in 1990 by invading Kuwait and Saudi Arabia. Since 1979, the Iranian regime has funded militant groups from Hezbollah to Islamic Jihad. And going back to the 1970’s and 80’s, the Soviet Union posed the West with its greatest existential threat when it raced ahead in the nuclear arms race.

A lifetime of foreign threats and crises, with one common factor. All of these threats and crises came from states that export a lot of oil. Let’s agree right off that the West’s responses to the authoritarians and armed groups listed were often ill-advised and immoral. Yet, again, we also need to ask why the authoritarians and armed groups were there in the first place. (And, for Al Qaeda and other jihadist groups, where they derived their extreme, fundamentalist version of Islam.) Again, oil does not explain everything—it’s a complex world, and each threat and crisis has several causes. And yet, again and again, the foreign threats and crises in our headlines have emerged from oil states, and have been driven by unaccountable men empowered by the money that we as consumers have sent them.

The past forty years have shown that the West cannot contain the unaccountable power of oil from outside exporting countries, through alliances or invasions or sanctions. There is only one source of accountability over the power of oil and other resources, which is the people of the country, who live right there, on the ground, every day. Respecting popular resource sovereignty is the political solution for lifting the resource curse, on ‘them’ and on ‘us.’ When we wake up tomorrow, our countries will have a choice: Clean Trade or effectiveness. I accept the consequences of the law that I recommend.[19] Those who endorse continuing with effectiveness must also own the consequences of the law that they support. Tomorrow’s threats and crises will be on them.

While pressing for the abolition of effectiveness, reformers should be determined but never utopian. Stewart imagines campaigners who think, ‘once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper.’ But that kind of thinking is unrealistic. As Blood Oil says,

Abolishing effectiveness for resources can start today, but it won’t be finished tomorrow. This won’t take sixty years, like abolishing the slave trade—yet resistance will be significant, and setbacks will happen.

And once more, the world is not monocausal or even oligocausal. Resources are something, but not everything… Even the best policies will fall far short of magic. The resource-diseased countries that we’ve studied, such as Saudi Arabia and Equatorial Guinea, have many weaknesses beyond resources; they may not become stable constitutional democracies even in the medium term. We should also remember that in many resource-disordered countries, corruption is not a fault in the system, it is the system—so changing the basic structure of governance will take time. More, there are many important global challenges—such as nuclear proliferation and banking secrecy— that resource reforms by themselves will not meet. The finale of our journey is not an earthly Paradiso; we press on.

Strategies for Progress

The campaign for abolishing ‘might makes right’ for natural resources faces significant challenges. This is not the work of a single day or year. Because the opposing forces are so entrenched, any successful campaign must move on several fronts at once. Which strategies will be best for reforming ‘the rules that run the world’?

Barry is a leading authority on supply chains and on consumer complicity in injustices abroad. He sets out the challenges of individual action for change, before going on to consider some alternatives. Barry says,

The natural approach would be to work together to bring about legal reform in our own countries so as to delink ourselves from non-clean trade.  As a claim about what we ought to do, this seems unobjectionable. However, the path from what we ought to do, to what I and other individuals reading his book ought to do, is an uneasy one. I cannot count on others doing what we ought together do in deciding how to act.  Indeed, the unwillingness of others to do what we ought to do may change what I ought to do.

Barry is here raising the familiar problem of the connection between individual action and collective action. Twenty years ago, your deciding to recycle would not, by itself, have changed anything about how your community dealt with trash. Today, your deciding to eat free-range or vegan food will not, by itself, change anything about how your country regulates factory farming. No individual’s action is decisive—and sometimes it seems as though no individual’s action can have an impact at all. And yet, when one looks at examples like these, individual actions have made (and we hope will make) all the difference.

The most compelling story of individual action turning into major reform is the abolition of the Atlantic slave trade, which I sketch in Blood Oil and which is told at length in Adam Hochschild’s magnificent book, Bury the Chains.[20] When individuals began to boycott ‘blood sugar’ harvested by slaves on British plantations in the Caribbean, the forces set against the end of the slave trade were much more powerful than the forces that might oppose Clean Trade today. And yet, they did it—individual by individual, the anti-slavery boycott, combined with campaigns on several other fronts, made the slave trade illegal, first in the British colonies, and then across all of the slave-trading empires.

It may seem that individual action cannot be efficacious against the forces set against it. Yet as these and many other examples show, reform efforts based on individual action have often succeeded. We can hope that climate change will be another case like this—that individual action to reduce emissions will be part of a global campaign that turns the world away from the dangerous trajectory that it is currently on. Individual action is never sufficient for success, but as history shows it is often necessary. We should not give up on individual action before the campaigns begin.

Barry considers some individual actions that seem less promising. For example, he wonders whether individuals could impose a tax on themselves for the proportion of their spending that is on natural resources from resource-cursed countries. As he says, this would be difficult to do. The world’s supply chains are elaborate and ever-shifting, and for oil in particular they are opaque. Oil and oil products are used in many links in the supply chain for any particular good. For consumers to work out for themselves what their tax should be is currently well-nigh impossible.[21] As Barry says, consumers could demand more transparency from companies. Yet for companies constantly to update the proportion of ‘clean’ oil used to make their products would require quite expensive changes in global business practices. There is also the question of how this information could be conveyed to consumers in a way that would be useful to them.[22]

Clean Trade takes a different approach. Instead of trying to follow the oil, it follows the money. For our campaign, we asked: where are the big oil companies making their profits from extracting oil? Clean Trade has done the numbers, and compiled them into a ranking that shows which companies are doing more business with authoritarian regimes. This ranking is now available on the Clean Trade website, as part of its ‘Weekend Freedom’ campaign. This campaign says, for drivers who fill up on the weekends and have a choice of branded stations, ‘Why not do business with a company that does less business with dictators?’ This will send a message to the oil companies that consumers notice when they make deals with regimes that keep their people from being free. (For drivers who are even more committed, the website notes that the index can be used to decide where to fill up, all week long.)

Ultimately, Clean Trade does aim at coordinated legislation among states, to make the legal transition from international resource trade based on effectiveness to trade based on popular resource sovereignty. Legislation is the ultimate goal for reasons that Le Billon spells out in his discussion of voluntary initiatives at the company level. There needs to be a legally-enforced ‘level playing field’ for companies, to keep defectors from gaining competitive advantage. Yet while legislation is the ultimate goal, it is a goal that often requires consumer and citizen pressure to achieve. This is why Barry’s discussion of individual action is so important.

One point on which Barry and I are in furious agreement is that, as he says, ‘We can surely limit significantly the degree to which we consume it and products composed of it. And it seems we should take on such costs, if that is really what it takes to refrain from putting lots of money in the hands of repressive regimes.’ I agree—and as I’m certain that Barry would also say, we should reduce our consumption of oil not only for the sake of human rights, but for the sake of the climate as well.

It is urgent that humanity reduces its use of oil—indeed, its use of all fossil fuels—as quickly as possible. The best way to end blood oil is to end the use of oil entirely. These two crucial campaigns can reinforce each other—we can have ‘win-wins’ for both.

The first step for devising such strategies is to make an honest assessment of where we are with fossils. Humanity must reduce its use of fossil fuels as quickly as possible—and this will take concerted action, because humanity today depends on fossil fuels for its energy. In fact, the reality is that humanity today is highly dependent. One doesn’t get a good sense of this from the news, where many stories are about the rapid advance of renewable energy sources. Renewables are indeed rapidly advancing—yet from a very low baseline. The sober fact is that today humanity gets 85% of its energy from fossil fuels. And, for all of the progress, all renewables combined today provide around 4%.[23] (For an analogy, add up some foods that you eat now that provide 85% of your calories, and also foods that provide 4% of your calories. It’s certainly possible for you to make a ‘food transition’ that would bring those percentages closer to even, yet this would take determined effort.)

Oil, and so blood oil, will still be used for some time. This is why we need reinforcing campaigns to limit emissions, and—as the 2015 Paris Agreement says—to limit them through a ‘just transition’ that respects human rights. Reducing the use of oil will reduce the unaccountable power in the hands of violent, corrupt, and coercive men in resource-cursed states—and reducing the power of those men will reduce the global instability that hinders further international coordination on climate. The climate and Clean Trade campaigns should offer each other significant arguments and initiatives that support each other.

In the ‘Green Trade’ section of Blood Oil, the following argument, based on the principle that ‘the oil belongs to the people,’ is offered to push faster action on climate:

Over half of the world’s oil production, and over half of the world’s oil reserves, cannot be exported without violating property rights. This oil is ‘stranded’ in the sense that no one can rightly sell it: it is stranded because it cannot be sold without passing stolen goods. On strict market principles, more than half the world’s oil is right now not available to be exported at all.[24]

This argument should be especially potent when directed at powerful international actors (such as corporations and Western governments) that have always taken the protection of property rights as a top priority. We now show them that respect for property rights requires that we not buy stolen goods, based on a principle of ownership affirmed in treaties that they have long pledged to respect. For those who valorize capitalism and the roles as ‘market actors,’ this argument shows that oil use must be reduced quite significantly, right away.

One argument will never be enough, so we should look for more ‘win-wins’ on climate and on human rights. As mentioned above, a Clean Trade Act in a country like the United States would lead to a modest increase in the price of gasoline, which would help to speed the transition to renewable energies.

And, as Barry suggests, consumers can do much too.[25] One current Clean Trade initiative is a campaign against ‘Blood Plastic.’ If something is plastic, then it’s oil—so purchasing it may be spending money that entrenches the worldwide resource curse. And especially destructive are single-use plastics, which stimulate continuous demand for oil and which often end up damaging marine environments. Consumers can take positive action on all of these fronts by saying, ‘Don’t use single-use.’ Skip the straw, bring your bag, steel your bottle—it’s not unrealistically demanding to avoid single-use Blood Plastic, and by doing this consumers can take a first step after which further steps will seem easier. (More campaigns, such as ‘Washed Clean’ and the ‘Toycott,’ are described in Blood Oil.[26])

And Clean Trade has more, reinforcing campaigns as well. As Le Billon suggests, legal strategies are promising. Clean Trade is currently pursuing legal complaints against international corporations that buy fossil fuels from the world’s most oppressive regimes. We are also hopeful for action in international litigation, where a democratic successor to an authoritarian regime could dispute an unfavorable resource contract by showing that the previous regime could not have been authorized by the owner of the resource (the citizens) to enter into the contract. We will also be pressing for investors and businesses to respect the human right of popular resource sovereignty, declared in treaties that they have already pledged to honor.

There’s so much that we can do, individually and together, on many fronts, to lift the world’s resource curse. Stewart, Okowa, Barry and I may have local disagreements about this issue or that, but I admire each of them, and in the end I take issue mostly with the strain of pessimism that sometimes creeps into their remarks. This is a tough time in politics, as we all know. But those who have come before us have endured worse, and have kept going, and eventually they have won over challenges larger than those we now face. As Blood Oil says, we have to see the world with both eyes at once. The world is much worse than it should be, but in many ways it’s much better than it was—because determined individuals took resolute action for positive change.

Which brings us back again to Simon Taylor, Charmian Gooch, and Global Witness. Whenever pessimism about the world and its future takes hold, one might remind oneself what Global Witness has accomplished already, against what seemed to be impossible odds. Progress is possible, tomorrow’s heroes are acting right now. The sober lesson is that progress does not come by itself—it does take a great deal of hard work, by individuals coming together and making common cause. Yet progress can come. There is much we can do today to make the world a better home for humanity tomorrow.


BP. 2018. BP Statistical Review of World Energy. 67th edition.

Adam Hoschchild. 1995. Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves. New York: Houghton Mifflin.

ICCPR. 1966. International Covenant on Civil and Political Rights. 999 UNTS 171.

ICESCR. 1966. International Covenant on Economic, Social, and Cultural Rights. 993.

Phoebe Okowa. 2013. ‘Sovereignty Contests and the Exploitation of Natural Resources in Conflict Zones’, in Current Legal Problems 66.1: 33-73.

Phoebe Okowa. 2007. ‘Natural Resources in Situations of Armed Conflict: Is there a Coherent Framework for Protection?’ International Community Law Review 9.3: 237-62.

James Stewart. 2011. Corporate War Crimes: Prosecuting the Pillage of Natural Resources. New York: Open Society Institute.

Leif Wenar. 2017. Blood Oil: Tyrants, Violence, and the Rules that Run the World. Updated edition. New York: Oxford University Press.

Leif Wenar.


. The Right of Peoples over Natural Resources. (available on request,

Leif Wenar, Michael Blake, Aaron James, Christopher Kutz, Nazrin Mehdiyeva, and Anna Stilz. 2018. Beyond Blood Oil. Lanham, MD: Rowman & Littlefield.

[1] Stewart 2011.


[3] For readers interested in more details and footnotes, shorter summaries of the book are now available. An open-access, policy-oriented summary is in the Progressive Review at A fuller summary is in the first chapter of the author-meets-critics volume, Beyond Blood Oil. Wenar et. al., 2018.

[4] In the US, sub-soil resources are often privately owned. This is compatible with the principle, insofar as the relevant authorities were minimally accountable when they passed the laws that allowed private acquisition of what were, up until then, publicly-owned resources.

[5] ICCPR, ICESCR, common Article 1(2). Stewart raises the important point that international law has also affirmed the rights of indigenous peoples to the natural resources of their traditional lands. These legal rights of national peoples and indigenous peoples are compatible. I say a little about this in Wenar 2017, pp. 198-200, and much more in Wenar [forthcoming].

[6] Okowa 2013, pp. 37-39.

[7] Wenar 2017, p. 81.

[8] Wenar 2017, p. 111.

[9] Okowa 2007, pp. 246, 257, discussing the doctrine of ‘permanent sovereignty over natural resources.’ I survey the current status of popular resource sovereignty in international law in a working paper, available on request (

[10] Wenar 2017, p. 285.

[11] Wenar 2017, pp. 276-77.

[12] Okowa worries that a Clean Trade Act would be a ‘witch-hunt’ that would ‘be a rallying point for political Islam.’ Currently, passing a Clean Trade Act would disqualify resource imports from, for example, Russia, Burma, Iran, Saudi Arabia, and Angola—countries of different world regions, with quite different histories, religious and ethnic compositions, and relations to the West. Okowa might need to spell out in more detail how her concerns might eventuate.

[13] Wenar 2017, pp. 296-97.

[14] This case is based on a parallel example inWenar 2017, pp. 119-20.

[15] Saudi Arabia is party to the Arab Charter of Human Rights, which affirms all peoples’ rights over their resources.

[16] Wenar [forthcoming].

[17] See Wenar 2017, p. 115.

[18] Wenar 2017, p. xv.

[19] The best question I’ve ever gotten when speaking on the reforms I advocate is whether I would still press for them were it my own life that would be sacrificed in the transition to a better world. My answer was, ‘of course yes.’

[20] Hochschild 1995.

[21] These problems with supply chains would not affect a Clean Hands Trust, as Barry suggests. To set up such a trust, an enacting state only has to know how much stolen oil is going into a target country. (This is easy to find out, as most internationally-traded oil is transported on huge tankers, already tracked by satellites.) The enacting state then simply collects the value of that stolen oil from duties on imports from the target country, and holds that money in trust. See Wenar 2017, pp. 289-91.

[22] There has been an attempt at a certification scheme to generate something like ‘Fair Trade Oil,’ but it seems not to have gotten traction so far. See Equitable Origins, EO100 Site Certification scheme

[23] BP (2018).

[24] Wenar 2017, p. 304.

[25] As Barry says, for instance, consumers can purchase a conflict-free Fairphone; gems guaranteed not to be taken from combat zones are also available at retailers like Brilliant Earth.

[26] Wenar 2017, p. 292.

A Clarion Call

Simon Taylor is the Founding Director of Global Witness, UK, Europe.  Simon’s areas of expertise include environmental sustainability, peace and human rights, and responsible supply chains.  Simon is increasingly focusing on climate change, with a particular interest in the way in which the fossil fuel industry has corrupted and co-opted global politics to such an extent that it has been able to prevent appropriate action to address the climate crisis.

Charmian Gooch is the Director and Co-Founder of Global Witness.  Charmian developed and launched Global Witness’s ground-breaking campaign to combat ‘blood diamonds’; Global Witness was nominated for the 2003 Nobel Peace Prize as a result of this work.  In 2014 Charmian was awarded the TED Prize, given to an ‘extraordinary individual with a creative and bold vision to spark global change’. In 2014, Charmian along with Global Witness co-founders Patrick Alley and Simon Taylor, received the Skoll Award for Social Entrepreneurship, awarded to ‘transformative leaders who are disrupting the status quo’.

Leif Wenar quotes Einstein “The specific problems we face, cannot be solved using the same patterns of thought that were used to create them.” He has embraced this quote with gusto and worked out, in a fascinating and detailed way, many of the ramifications of a complete shift in the way in which resources are traded.

We must be clear that Leif Wenar in Blood Oil, writes very positively, and at length about Global Witness, the organisation that we co-founded with Patrick Alley about 25 years ago. This included interviews – see Chapter 17 – and so readers of this blog might be forgiven for thinking we are perhaps biased towards his arguments. We have tried hard not to be and tried instead to distance our reading selves from both Leif Wenar and Blood Oil.

His Clean Trade Policy is a thought provoking way into a very complex problem. He is essentially arguing that the entire way that oil, and other resources are traded is morally untenable and must be changed to a more equitable approach to trade. He makes fascinating comparisons with the ending of the repugnant slave trade and points out that “many of the great movements for moral progress in the past three centuries have been morally simple. All humans should be free: the hard work was ending slavery.”

Anything which helps frame a path towards tackling the resource curse and associated corruption, conflict, grinding poverty, human rights and environmental abuses is to be welcomed. After the targets agreed at the UNFCC 2015 Paris Climate Agreement 2016 this is also a welcome conversation about how to get off fossil fuels as fast as is practical.

Leif Wenar’s focus on oil as the most valuable commodity traded across borders makes a lot of sense. Oil is so utterly ubiquitous – look around you and virtually everything within a 10 foot radius of where you are sitting has been produced from oil, made using oil or transported using it  –  so it can be very hard to imagine a future where the trading of it might look very different. Blood Oil frames a very different way of thinking about trade, the current inherent power relationships and how to change it. He has very detailed and well thought through suggestions for how to achieve that change.

Could it be considered a bit Panglossian? Well, yes in some ways but that is the easy way not to engage with an important argument. We could nit-pick and point out, for example, that USA oil independence has come at very high environmental cost. But Leif Wenar has anticipated many of the questions that the reader might raise and worked with other experts to address them. Global Witness has experienced that same sense of incredulity at an idea:  in 1999 it launched the call for oil companies to publish the revenues that they pay in the countries that they pay them as a simple mechanism to drive transparency and undermine the many facets of the resource curse. At the outset of this campaign people laughed at the naivety of this seemingly simple question. It has since gone on to become a global movement and an unstoppable wave of change despite industry fightbacks. It has also become very mainstream thinking.

The broad sweep of his argument is very compelling and his detailed recommendations are a really useful way to look at and understand the trade in oil and other extractives and their often appalling consequences at so many levels. It is a comprehensive clarion call for global change.

Ending the Tyranny of Anonymous Commodities: Trade Rules Can End the Laundering of Stolen Goods and Improve Governance in Producing Countries

Philippe Le Billon  is Professor at the University of British Columbia with the Department of Geography and the School of Public Policy and Global Affairs.  His main research areas include the political economy of war, the governance of primary commodity sectors, and illicit financial flows.

Every day, consumers worldwide spend about US$11 billion on oil products. For those controlling its flow, oil provides a concentrated revenue stream without equal and a source of enormous social power. Economic development in the twentieth century owes much to the cheap and flexible energy that an expanding flow of oil has provided. But this development has come at a high price, especially for people in producing regions.[1]

Turning oil wealth into broadly based social development is a massive challenge for producing countries. Oil-field development requires large capital investment but creates relatively few direct jobs. Developing ‘through oil’ thus largely relies on the capture and allocation of oil revenues. While oil earnings are generally impressive, they are also highly volatile and often negatively distort the rest of the economy. Too often, oil wealth also disproportionately ends up with ruling elites and foreign corporations, despite oil being in most cases “public property.” These challenges require sound long-term policies, robust and accountable governance institutions, and a diversified economy able to withstand the effects of windfall. Yet oil wealth can work against these requirements by fuelling short-term populist policies or unrealistic long-term plans, concentrating rather than diversifying economic activity through overvalued currency and labour-market distortions, and weakening instead of consolidating institutions through corruption, bloated bureaucracies, as well as entrenched patronage and patriarchy.[2]

These challenges are often compounded by the destructive will and personal interests of rulers in oil producing countries. Oil wealth can sustain tyrannies by breaking the link between taxation and representation, supporting belligerent autocrats, and securing the support of foreign powers eager to selectively maintain rulers for the sake of oil supplies and lucrative contracts. In some of the worst cases, oil wealth sustains chronic insurgencies and enables aggressive leaders to take their country to war.[3] Not only is oil stolen from its rightful owners, the people, millions can die as a result of its proceeds being spent by corrupt and incompetent rulers.

Hundreds of scholars have examined these effects, including lack of accountability of resource-fuelled autocrats and rebels, the complicity of corporations and consumers, and the blowbacks resulting from dealing with resource-rich autocrats. In turn, the fair-trade movement, blood diamond & conflict mineral campaigns, and repeated UN embargoes have all pursued (at least in principle) the goal of reducing the suffering arising from the violence of commodity production, unaccountable supply chains, and abuses of power by commodity-funded rulers.

With ‘Blood Oil’, and the advocacy associated with the book, Leif Wenar raises further public awareness on these problems, and squarely puts international law governing commodity trade on the policy agenda. Wenar’s core argument is that ‘might makes right’ still constitutes the foundational norm of commodity trading: Whoever controls a country can sell its resources. His main call is thus to put an end to the unlawful control of resources by illegitimate and unaccountable rulers. The core solution, for Wenar, is a Clean Trade regime vigorously implementing a more expansive and robust definition of ‘stolen goods’.

The idea of restricting trade to ‘clean commodities’ is not novel, but such restrictions have so far fallen short of a systemic redrawing of trade rules around exporting regime characteristics. Campaigns on diamond trade first targeted the apartheid regime in South Africa before moving on to blood diamonds sustaining rebellions in Angola and Sierra Leone; yet the ‘Kimberley Certification’ scheme failed to move beyond rebellion to cover human rights and environmental abuses. Civil society organizations have also rallied against specific commodity exports, but these campaigns have generally targeted the complicity of individual western companies, rather than the resource ownership of rulers in exporting states. The United Nations Security Council imposed commodity sanctions in at least 26, though mostly on rebel groups rather than governments. Individual governments, and most notably the US, have also imposed unilateral sanctions on specific regimes, but selection criteria had more to do with US ‘national interests’ than with the security and well-being of population in exporting countries. More systematically, several schemes have attempted to limit commodity exports to those matching norms of good governance, but these have looked at practices within specific sectors, rather than the type of regime and the record of rulers in exporting countries.[4]

Overall, commodities still remain largely anonymous when it comes to their rightful owners and social impacts. This has no place in the workings of 21st century commodity trade; when so many traceability instruments and information channels are available to inform authorities and consumers about the provenance and impacts of commodities in producing countries. Voluntary instruments are likely to remain limited in their effectiveness, precisely because they are working in a competitive market characterized by an uneven ethical playing field. While some companies may see an interest in ‘clean-sourcing’, many will continue to look at the bottom line. More specifically, the oil market is relatively fluid, and do-gooders will carry the brunt of price differentials for ‘fair oil’ while others will reap the benefit of lower prices for ‘stolen oil’. State-led public policies on sourcing would be more effective, but decisions would come under pressure from many other dimensions, including supply security, affordability, and geopolitical concerns – reproducing many of the distortions observed for UN Security Council sanctions. The best avenue may rest in the legal domain: when claimants can get compensation for having their goods stolen by their illegitimate rulers, and corporate intermediaries in the receiving of stolen goods can be deterred through extensive fines. Corruption by international companies has not come to an end, but some progress has been made since heavy fines and costly reputational damage incentivized companies to change their practices.[5] The same can occur with stolen goods.

[1] Bridge, Gavin, and Philippe Le Billon. Oil. John Wiley & Sons, 2017.

[2] Ross, M. (2012). The oil curse: how petroleum wealth shapes the development of nations. Princeton University Press.

[3] Le Billon, P. (2012). Wars of plunder: Conflicts, profits and the politics of resources. New York: Columbia University Press; Colgan, J. D. (2013). Petro-aggression: When oil causes war. Cambridge University Press.

[4] Le Billon, P., & Nicholls, E. (2007). Ending ‘resource wars’: Revenue sharing, economic sanction or military intervention? International Peacekeeping14(5), 613-632; Carisch, E., Rickard-Martin, L., & Meister, S. R. (2017). Commodity Sanctions. In The Evolution of UN Sanctions (pp. 111-132). Springer, Cham.

[5] Samanta, S., & Sanyal, R. (2016). The Effect of the OECD Convention in Reducing Bribery in International Business. Global Business and Management Research8(1), 68; Arbatskaya, M. N., & Mialon, H. M. (2017). The Impact of the Foreign Corrupt Practices Act on Competitiveness, Bribery, and Investment. Available at SSRN:

Blood Oil: A Plea for Progressive Reform or a Philosopher’s Utopia?

Phoebe Okowa is Professor of Public International Law at Queen Mary University of London.  Her teaching interests are in the broad area of Public International Law, especially the law of armed conflict, international environmental law and international criminal law.  She has been a Visiting Professor at New York University School of Law, University of Lille and Stockholm. A member of the Permanent Court of Arbitration, she has advised Public Sector Organizations on questions of Public International Law and served as a member of the IUCN Committee on Environmental Law and the International Law Association Committee on Transnational Enforcement of Environmental Law.

This is an important book. Although not the first to document the extreme deprivation that exists in countries abundant with natural resources or the kleptocratic manner in which those in authority enrich themselves at the expense of their populations, it is to my knowledge the first to offer a systematic explanation of our collective complicity as citizens in this kleptocratic enterprise. The existing literature whether by international lawyers or political scientists, have largely documented the complicity of governments and large corporations in atrocities perpetrated by autocratic and unaccountable regimes as well by rebel groups; collectively, these groups have been able to inflict unimaginable misery on political communities, domestic and international through revenues generated by natural resources.  The first part of this book is largely confirmatory of the themes in the existing body of literature that have explored the predatory and destabilizing role of natural resources in perpetuating autocracy, religious intolerance, mass human rights abuses and general global insecurity.  But this is not a rehearsal of well–trodden arguments or sweeping generalizations. The book is meticulously researched and backed by impressive data as evidenced by the detailed account of the extensive abuse of power by President Obiang of Equatorial Guinea, a country and a president not usually the stuff of headlines! But it is not just explanatory of the pernicious effects of natural resources especially oil.  The book postulates an agenda for change, a plea for responsible citizenship that would require individuals in rich countries to give up their dependence on oil from repressive regimes, loosely categorized as those governments that are in not in any way accountable to their populations especially natural in resource matters.

Thematically this review is by no means comprehensive and in many ways reflects my own disciplinary biases as a public international lawyer.  However, it is probably a good area to focus on because from the outset, the author does not hide his disdain for the normative framework of international law and its supporting institutions.  He is particularly critical of international law’s broad acceptance of governments’ ‘effective control’ as the basis of authority and it’s concomitant failure to give substance to ‘popular sovereignty’ in natural resource transactions. Broadly, he sees international law’s unquestioning acceptance of ‘effectiveness’ as being in conflict with its commitment in international treaties, that the resources of a territory belong to its people. Moreover drawing on examples from domestic law, he points out the inherent contradiction in a system notionally committed to the rule of law also sanctioning a power structure characterized by ‘might is right’. The Putin’s, Obiang’s or Gaddafi’s are able to sell oil because by the rules of the system they are the recognized depositaries of public power, free to dispose of the natural resources of their territories even in the absence of tangible benefit to the populations themselves. Put crudely that international law itself sanctions the theft of natural resources by odious regimes from citizens who rightly own it.

It is true that international lawyers have long accepted that in general ‘effective control’ not democratic legitimacy or popular sovereignty is the basis of authority in international law. This is not because they would not prefer things to be otherwise – international law has never claimed that this it is a just or morally defensible rule, but it is a rule the reflects an acceptable compromise between the twin demands of justice and order in a pluralist community of states. It also a nod to the reality that co-operation and peaceful co-existence may in fact entail a considerable degree of deference to governance structures that are plainly undemocratic.  Few would disagree that effective control is in fact the bedrock on which, however imperfect, the present system of international peace and security rests.  The values that underpin Wenar’s plea for change have in fact been considerably undermined in post Gaddafi’s Libya or Saddam’s Iraq by misguided attempts to create a more democratic and accountable framework of governance, and to prioritize the demands of justice. To be clear, he is adamant that his is no call for pro-democratic intervention, but the coercive and intrusive economic measures advocated for in his Clean Trade Act would in each case have an effect, potentially as catastrophic as the military interventions in Iraq and Libya but this time affecting a multiplicity of regimes and millions of citizens. There are good reasons why the strictures on intervention are not limited to use of force but extend to all forms of economic and political coercion, especially when intended to bring about regime change.

There is also the deeply troubling fact that we live in an international system characterized by profound political inequality and in which the United States and the United Kingdom have played a pivotal role in the marginalization of states from the Global South, and have themselves been complicit in propping up some of the most repressive governments that emerged during the cold war period. Against this backdrop, any proposal of oversight by citizens of these same countries plays straight back into the narrative of subordination, a civilizing mission in all but name.  Moreover, it is surprising that not much thought is given in the book as to how those likely to be destabilized by the proposed system of boycott may react to them; for to have any veneer of legitimacy it must act at least in concert or with the the tacit approval of those with a stake in the system.  Congolese artisanal miners as the doomed US legislation (Dodd Franck 2010) indicates or Nigerian citizens dependent on oil revenue are unlikely to take very kindly to system of degrading tutelage overseen by American or British consumers, deciding when best to buy oil from their governments and when to retreat. Wenar’s remedial proposal has all the hallmarks a citizen sanctioned system of vigilante justice, without oversight or any form of accountability to the populations likely to be affected. Moreover, it assumes as a matter of fact that the citizens of rich nations, empowered to exercise oversight will act on principle free from bias or the influence of domestic partisan interests. The Dodd Franck conflict mineral legislation introduced in 2010 was designed to prevent US corporations from buying conflict minerals that were fuelling violence in the DRC is swiftly being reversed by the Trump administration not because of its devastating socio-economic impact, as the de facto boycott of Congolese minerals took hold, but because it puts US companies at a competitive disadvantage in the international market.  The litigation in US Courts challenging the Dodd Franck Act was singularly concerned with the first amendment rights of American corporations and the livelihoods of local stakeholders impoverished in the wake of its implementation has played no role at all in the formulation of American policy.

There in are fact good reasons why all legal systems including international law, generally frown on self-help, and when sanctioned, only as a most exceptional measure, and subject to important humanitarian safeguards. In the absence of adjudicatory structures of oversight, self-help quickly degenerates into an institutionalized system of witch-hunt against so called ‘pariah states’. The systematic boycotts proposed in the book, to the extent that it will be directed at largely oil producing Islamic states will if nothing else be a rallying point for political Islam and the attendant security implications.

The Nigerians, Venezuelans, or Saudi’s may wish for a more just and democratic framework for the distribution of oil revenues but arguably not at the expense of their own dignity and integrity as sovereign peoples. The futility of prolonged economic sanctions in Iraq and their effect in helping Saddam Hussein consolidate his hold on power, as an Arab hero resisting the forces of neo-colonialism, is a cautionary tale against attempts to bring about political change through external economic coercion. In the form outlined, Wenar’s Clean Trade Act sits rather uncomfortably with the sovereign equality of peoples and the overriding imperatives of maintaining peace and order. This is not to say that states must do as they please or that we must always look the other way, but any forms of pressure brought to bear must be consistent with the bedrock principles on which our shared security rests. A targeted campaign of boycott with a declared objective of regime change, even if that change emanates from the people themselves must also recognize that is a course of action potentially destabilizing the very communities it is meant to protect.

Blood Oil and the Individual Consumer

Christian Barry is a Professor of Philosophy in the Research School of the Social Sciences at the Australian National University. His areas of expertise are moral and political philosophy, with a focus on issues of international justice.

At the beginning of his inventive masterwork Blood Oil  Leif Wenar tells a compelling story about how individual consumers are implicated in severe harm abroad. We are accustomed to the depredations of authoritarian regimes, civil conflict, widespread human rights violations and extreme poverty far removed from our day to day activities. We can ring our hands and shake our heads, but what do we really have to do with any of these happenings? And given that we have little to do with them, how much cost can we actually be expected to take on to try to mitigate them? Wenar grabs us by the lapels and shakes us from such acquiescent patterns of thinking. He argues that we are contributing to many such harms, and doing so directly though our everyday purchasing behavior. We are not, as we suppose, innocent bystanders, but are unwitting contributors to death and terror, filling the pockets of merciless men who steal their countries’ resources and terrorize their populations (xvi) when we fill our tanks and do our shopping at the local mall.

While the casual links between individual consumers and these harms may be long and complex, the mechanisms that hold them together are, on Wenar’s telling, surprisingly simple. The problem is that trade is governed by “an archaic rule of international trade that violates the most fundamental rule of capitalism: to protect property rights.” This archaic rule is what Wenar calls effectiveness. The content of this rule is that “coercive control over a population (“might”) will result in legal control over that population’s resources (“right”)(xlv). Basically, “whoever can seize it may sell it” (76). Effectiveness creates powerful incentives for people to take and maintain control over resources, which explains why so many resource-rich countries suffer from social and political dis-function. And it is because of this rule that the money we spend at filling stations and on consumer goods goes back into the pockets of oppressive rulers and fuels intense and violent competition over the control of resources.

Yet while Wenar confronts individuals directly for their role in this deeply unjust system of trade, the reform proposals he offers are not things that individuals, qua individuals, can do. Rather, they focus primarily on what states can do to make their trade governed by the principle of popular sovereignty over resources, rather than effectiveness (‘might makes right’). That is, states must cease to engage in trade in resources with governments that fail to meet even quite minimal standards of legitimacy—a Clean Trade Act (283). And they must impose tariffs on goods imported from countries that use resources from such regimes as inputs to their production, with the funds held until they can be returned to the exporting countries once their governments are legitimate—a Clean Hands Trust (289).

Supposing that Wenar’s analysis of what states ought to do—adopt Clean Trade—is correct, where does this leave the individual consumers with which he begins? One answer might seem straightforward: individual consumers should join together to bring about the changes in the policies of the states that represent them to comply with the norms of Clean Trade. Wenar points out that it is only because our domestic legal regimes treat despotic regimes as entitled to sell their countries’ resources to us, and because they protect out property rights in the things we buy involving such resources, that the archaic rule remains in place. It is our governments that identify which foreigners possess legal rights to sell foreign resources to us, and were they to suspend such rights (as in the case of the executive order targeting Sudan) we could not purchase them (106, 108). So the natural approach would be to work together to bring about legal reform in our own countries so as to delink ourselves from non-clean trade.

As a claim about what we ought to do, this seems unobjectionable. However, the path from what we ought to do, to what I and other individuals reading his book ought to do, is an uneasy one. I cannot count on others doing what we ought together do in deciding how to act.  Indeed, the unwillingness of others to do what we ought to do may change what I ought to do. If it turns out that the concerted action of willing individuals will be highly unlikely to bring about the reforms Wenar proposes, where does that leave us? This is not an idle question. Although Wenar carefully shows how his reforms may be incentive compatible, there are also, he notes, very powerful interests that would be mobilized against them (230). Certainly, no major political party in any Western country has made trade reforms of this type part of their agenda, and it is hardly obvious that this will change in the near future.

Note that the kind of responsibility that Wenar has attributed to consumers—not to contribute to harming innocent people and stealing resources that belong to them—is quite stringent. We cannot easily excuse ignoring this responsibility by appealing to the costs to ourselves of doing so, or to other valued moral ends that our conduct will bring about if we act against it (as Wenar details, existing trade generates great benefits, as well as harms, which might be diminished with reduction in trade volumes (x). So throwing up our hands in frustration at the unwillingness of others to help bring about the desired institutional reforms while getting on with our ordinary business is not, on this reasoning, an option. Nor would the option of supporting Clean Trade policies that we are confident will not be adopted now or in the near future seem sufficient. One option would be for individuals to withdraw from involvement in trade with countries that do not practice popular resource sovereignty. Wenar suggests that this is not really feasible. He notes that it is nearly impossible to function in modern societies without using petroleum-based products (xxxvi). But this argument is not entirely convincing. While it may be true that we can hardly avoid consuming oil, we can surely limit significantly the degree to which we consume it and products composed of it. And it seems we should take on such costs, if that is really what it takes to refrain from putting lots of money in the hands of repressive regimes.  So at the very least his argument would seem to trigger a quite stringent responsibility to reduce consumption—an implication he does not explicitly embrace in his book. Alternatively, individuals might seek to avoid consumption of oil from at least those countries that do not embrace popular sovereignty over resources. Wenar is skeptical that we can do this either, noting that the supply chains involving such products are too complex and intertwined.  But should we accept that it is really impossible to gain more information about where the oil we consume is from? Would it not be possible for citizens to start to demand such information from firms that sell goods to them? Pressure of this sort might be difficult to generate, but arguably much less difficult than bringing about substantial institutional reform. And as Wenar there are example campaigns such as ‘publish what you pay’ that are at least encouraging in this regard. There seem certainly to be some instances in which we can shift from non-clean trade to clean (or at least cleaner) trade, such as when a new product like the FairPhone appears that is functionally equivalent to other mobile devices without involving components sourced via non-clean trade. Wenar claims that “it’s difficult to imagine being a Fair Trade consumer of oil”, but surely individuals can at least do a bit better than they do at present. Moreover, skepticism about the ability to learn more about the province of goods and services sits somewhat uncomfortably with Wenar’s own proposal of a Clean Hands Trust, which requires that we return funds to exporting countries once their governments restore popular sovereignty over resources. How would we know what we should return to whom unless we are able to track, at least roughly, where the inputs to consumer goods are coming from? His own proposals seem to depend on the feasibility of reliable schemes of certificates of origin (409).

When it comes to the stringent responsibility not to contribute to severe harm, acting contrary to it triggers a requirement to take on quite significant costs to address the hardships of the victims. So if it is infeasible to withdraw from involvement in non-clean trade, this seems to trigger quite demanding duties to address their effects. How should such duties be discharged? All things being equal, individuals should take action in the manner that is most likely to remedy the most amount of harm. One possibility will be to take on cost to support Wenar’s proposals. We can vote, lobby, contribute to those who are seeking to bring about these changes. But if the forces allied against such changes seem unlikely to be overcome, what individuals should do may diverge considerably from what we together should to. I ought to orient my efforts where they will have the greatest chance of success. What alternative strategies might I take? Some of these are already suggested by Wenar’s proposal at the state level. We as individuals could self-impose a tax on goods that come to us through non-clean trade. Ideally, these funds would not be held in trust, but rather directed back to those harmed insofar as there is any chance this would do any good. While I have been speaking of individuals, there is no reason they cannot join together with like-minded others to create organizations that pool such resources and acquit them responsibly.

Blood Oil is an important work, and individuals need to think seriously about what they ought to do in light of its analysis given the many obstacles to the adoption of the far-reaching policy reforms that Wenar defends in this work. Failing to take action as individuals while waiting for institutional reform has another disturbing implication—those who continue to harm innocent people and steal their property become liable to being harmed in self-defense, as well as having their (stolen) property appropriated by its rightful owners or others acting on their behalf.

New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World

I’m very pleased to host this new symposium on Leif Wenar’s book Blood Oil: Tyrants, Violence, and the Rules That Run the World (OUP, 2015). This major new text takes up the problem of the resource curse and its discontents, offering a politically ambitious, substantively provocative, beautifully written, and highly accessible treatment of a major global problem. I was especially excited to see a leading political philosopher address the relationship between natural resources and global justice, and to pick up on our overlapping concern for the widespread theft of natural resources globally. Wenar not only explains the problem with great clarity, he also offers a bold prescriptive way out of the predicament. In this symposium, he submits to respectful scrutiny from a range of scholars from diverse disciplinary backgrounds who contest different aspects of his argument. Before I introduce the commentators, I add to a longer summary he himself has written by presenting some brief background about the central arguments in the book.

Wenar’s major claim is that most natural resources are stolen. He takes this view for a variety of reasons, but predominantly because the international legal order allows any armed group, no matter their how weak their democratic credentials, to enjoy legal title over a state’s natural resource endowments. In Wenar’s language, the international order’s deference to “effectiveness” is morally perverse in that it embraces “might makes right.”[1] According to Wenar, this perversity engulfs the entire global resource sector: “‘Might makes right’ is as much true for an autocrat in coercive control of an oil-rich country as it is for a band of militants who seize a mine by force. In both cases, the alchemy of effectiveness transmutes the iron of coercion into the gold of legal title.”[2] And yet, if peoples own natural resources, international law’s deference to effectiveness as part of this dark alchemy enables theft.

The implications of Wenar’s thesis are sweeping. As he argues, international law’s overly-permissive stance towards violent resource predation “violates rights on a massive scale, and it causes enormous suffering.”[3] Deontologically speaking, Wenar argues that “[r]ewarding violence with rights makes a nonsense of property.”[4] Consequentially, he draws on the resource curse literature to show how resource endowment is negatively correlated with rates of armed violence, severe poverty and all other measures of social dysfunction. Perhaps his farthest-reaching argument, however, is that international law’s perverse embrace of “might makes right” undermines democracy: “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5] Thus, Wenar sees redressing this dynamic in global resource governance as crucial in promoting democracy.

Wenar finds the norms necessary to achieve the political transformation to global democracy via resource governance in pre-existing international law,[6] echoing the international law scholars who discovered an emerging right to democracy at the close of the Cold War.[7] In particular, he relies on self-determination in human rights instruments and the notion of permanent sovereignty over natural resources to conclude that peoples own natural resources. For the bulk of the remainder of the book, he seeks to establish the circumstances under which state officials cannot act as agents of the people in resource transactions, negatively delineating the circumstances wherein the purported alienation of people’s resources is incapable of passing good title.

On this score, Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs).[8] The political ramifications are substantial. As Wenar explains, “[i]n concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and basic political rights.”[9] Consequently, for Wenar, popular sovereignty over natural resources guarantees some semblance of democracy: “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[10]

The book addresses itself to a public audience, presumably because its overall conclusion is that we Western consumers are inextricably bound up in this violence and can do something politically transformative in response to it. To illustrate, at the beginning of the book, Wenar promises to “probe how consumers come to be legally chained to distant warlords. For surely those warlords had no legal right to their plunder?”[11] He goes on to argue that these problems are so ubiquitous that we consumers are all implicated, concluding that “[o]ur moral taint is a certainty… we all own stolen goods.”[12] In calling on us to address this moral taint, Wenar places the issue alongside some of the most infamous historical manifestations of “might makes right” — such as the slave trade, colonialism, apartheid, and territorial conquest[13] — insisting that addressing the theft of natural resources is the boldest yet still realistic global political project our generation might undertake to further this emancipatory moral trajectory.[14]

As will be apparent from my recitation of the argument, a project of this breadth and ambition will attract a broad variety of opinion. To foster critical debate on this topic, I am pleased to have brought together a group of scholars and practitioners from diverse backgrounds to offer reflections, criticisms and new vantage points on these issues. As is my normal practice, I have placed the names and affiliations of commentators on an accompanying page that lists all of the current and past contributions to this blog (see here). Nevertheless, let me explicitly showcase the disciplinary diversity they offer. This symposium hosts a leading scholar in the philosophy of global justice, a prominent international lawyer from Africa, arguably the leading scholar on resource wars globally and the founders of the NGO Global Witness. I also contribute a series of reactions based on the difficulties that have arisen in the theory and practice of attempts to promote democracy in international law, before inviting Wenar to respond to criticisms. I hope that the resulting body of thought is stimulating to all those concerned by the egregious underlying problem.

[1] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World xlv (1 edition ed. 2015).

[2] Id. at xiv.

[3] Id. at 334.

[4] Id. at 73.

[5] Id. at xlviii.

[6] Wenar, supra note 1 at See Chapter 11 Popular Resource Sovereignty and Chapter 12 The State of the Law.

[7] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int. Law J. 1–70 (1995); Anne-Marie Burley (Slaughter), Toward an Age of Liberal Nations Symposium: Nationalism and Internationalism: Shifting World Spheres, 33 Harv. Int. Law J. 393–406 (1992).

[8] Id. at 227–228.

[9] Id. at 228.

[10] Id. at 229.

[11] Id. at xlv.

[12] Id. at xx.

[13] Id. at 311.

[14] Id. at 358. Like “the abolition of the slave trade, the liberation of the colonies, the end of white rule, and the many campaigns for human rights,” “[t]he reform of ‘might makes right’ for natural resources will be the next of these movements.”

The Virtues of Hybridity: Response to Symposium Contributions

Leora Bilsky is a Full Professor at the Tel Aviv University Faculty of Law, and the Director of the Minerva Center for Human Rights at Tel Aviv University. She is the author of Transformative Justice: Israeli Identity on Trial (Michigan University Press, 2004), and The Holocaust, Corporations and the Law (2017).

I am most grateful to James Stewart for hosting this symposium on my book The Holocaust, Corporations, and the Law: Unfinished Business, and I would like to thank him and the other contributors, Annika van Baar, Chimène Keitner, Joanna Kyriakakis, Mayo Moran and Franziska Oehm, for their insightful and thought-provoking comments.

In my book I argued that Transnational Holocaust Litigation (THL) offers a hybrid model, integrating criminal and civil law and conceptions of individual and collective responsibility. The different contributors acknowledge the THL model’s potential for addressing the responsibility of the business corporation but raise various questions about the need for such a hybrid approach, especially considering what seems to be its biggest concession – the need to refrain from addressing the issue of moral blame. Thus, some of the responses suggest that the book overlooked the advantages offered by criminal law, while others argue that it did not go far enough in harnessing the possibilities offered by civil law responsibility. In my short response, I shall engage the different essays, dividing them along the criminal law/private law axis, and conclude by considering whether THL can provide a model for the future.

 On the “criminal law” side we find Franziska Oehm, who challenges the notion of transnational civil class action settlement as the “better” tool for addressing corporate atrocities. She raises two main points. With regard to the class action mechanism, she notes the lack of an international institution competent to deal with class action lawsuits, and its relative weakness in many domestic jurisdictions outside the United States. With regard to the role of victims, she claims that the preference for a civil track holds true only in relation to well-defined and organized groups. Moreover, she rightly points out that some criminal law systems (such as in Argentina) do indeed allow for the initiation and participation of victims.

I would like to focus on the latter point, which questions the advantages for victim participation provided by the THL model as compared with criminal proceedings. Indeed, one of the goals of my book was to emphasize the importance of allowing victim groups to organize, initiate proceedings and participate in the legal process. In particular, I pointed to the possibilities that the THL model offers for overcoming the barriers to such participation set by states (in both the domestic criminal track and the international track). Regarding the question of what kinds of groups may have the chance to harness these possibilities, I believe that THL provided mixed results. On the one hand, weaker groups such as the Roma were unable to receive significant compensation, but on the other hand, while the lawsuits were indeed initiated and led by strong Jewish organizations, most of the compensation paid by German corporations was channeled to weaker groups of former forced-laborers and their families in Eastern Europe. Substantively, I agree that victim groups’ initiation and participation are no longer limited to civil litigation, and in my book I also pointed to parallel developments in International Criminal Law (ICL) concerning victim participation, such as in the Rome Statute. However, I argue that the solutions that were developed in THL to deal with problems of representation and conflicts of interest can prove fruitful for addressing these issues which are now resurfacing in ICL. In other words, in light of the trend toward victim participation in domestic and international criminal law, THL may provide a source of inspiration for creating better solutions to issues of mass representation.

Also writing from a criminal law perspective, Joanna Kyriakakis thinks that the book “gave up” too quickly on International Criminal Law (ICL) with regard to business corporations, partly because it focused on the Nuremberg model as opposed to modern ICL. Kyriakakis reminds us that, in fact, no corporation was put on trial in Nuremberg, so that the power of criminal law over corporate defendants was not really tested. James Stewart also contends that the book downplays the possibilities offered by modern ICL. Stewart rightly distinguishes between Nuremberg’s jurisprudence, which was based on “conspiracy” and “criminal organizations” in order to move beyond the direct perpetrator, and modern ICL, “which has replaced them with a plethora of ‘modes of liability’ that are better suited to implicate corporations.” On a deeper level, Stewart questions whether “civil liability is a sufficient response to what Raphael Lemkin once called ‘barbarous practices’ reminiscent of the darkest pages of history.” At issue for him is the particular function that criminal law serves – one that is uniquely tailored to addressing moral blame through its expressive function, by insisting on prohibition as opposed to payment, or by prohibiting plea-bargains altogether.

Even though Stewart embraces the contextual and pragmatic approach of my book, and rightly observes that it should not be read as an argument for the “ascendance of civil redress and/or settlement as a blanket rule,” I would like to address his concern about the ability of THL to tackle the issue of moral blame. In his essay, “Undoing Historical Injustice,”[1] legal historian Robert Gordon explains that the familiar critique of structural approaches to remedies is that they obscure the moral significance of social injustice. “Without acknowledgment of wrongful, personal agency, there is no shame; without shame, no assumption of responsibility, no possibility of redemption.”[2] However, as Gordon is quick to remind us, “in practice it has been the agency-based approaches, rather than the structural ones, that have tended to be exculpatory: the new regime turns on the bad agents as scapegoats for wrongs that really derived from the routine functioning of an entire social system.”[3] For Gordon, the capacity of criminal law to move from “narrow agent” to “broad agent” approaches by perfecting our “modes of liability” will not solve the problem because the very insistence on individual moral guilt to address problems of structural crimes will continue to hinder the law’s ability to correct the structure. Gordon concludes that “Agency-based theories are really of very limited use as a framework either for understanding systemic or society-wide injustice or for ensuring it does not happen again.”[4] This problem may arise from the commitment of criminal law to a traditional model that views the state as the source of legality and the criminal as a deviator from the norm, while the structural crime requires this conception to be reversed. As I wrote in the book:

In this [the traditional criminal law] model, the culprit characteristically is an individual, and the state intervenes as the accuser and the agent for enforcing and defending violated norms of community order. The jurisprudence of atrocity begins with the opposite assumption. Here the state is no longer the locus of legality, but rather the source of illegality.

Structural approaches to responsibility begin with this reversal, attempting to “fix” the system first, by bracketing the issue of individual moral responsibility. Moreover, it should be noted that the issue of individual moral blame is not completely absent from THL, but due to its new “division of labor” between judge and historian, it is relegated to the historical commissions. 

Surprisingly, a similar concern with the adequacy of THL to deal with the question of moral blame was also raised from the side of private law by Mayo Moran. While endorsinga civil law perspective, Moran, like Stewart, raises doubts about the need to sidestep the issue of moral blame in order to address institutional responsibility. However, while Stewart upholds the conception of “retributive justice” offered by criminal law, Moran points to the potential of the unique private law conception of “reparative justice.” Moran argues that “the role that private law’s distinctive conception of responsibility could play in Bilsky’s hybrid approach is limited by her view that adopting the structural reform model requires giving up on individual liability.” Moran contends that the relationship between THL and private law remains not fully developed in the book, which moves between instrumental and intrinsic justifications and overlooks the intrinsic justification of private law as a means for reparative justice. As Moran put it, “The book misses an opportunity to harness the normative power of private law responsibility to provide a substantive account of why reparations – or at least an effort to repair – matter intrinsically to THL and not just pragmatically.” In her view, we should return to the fundamental value that informs the requirement of compensation from the wrongdoer to the victim as “grounded in private law’s respect for personhood – compensation is the mechanism by which the law insists that wrongful injuries be repaired by those who inflicted them.” Moran rightly points to the book’s chapter on humanitarian payment, where I criticize the German defendants’ attempt to sidestep the reparative justice dimensions of the compensation by redefining it as a humanitarian gesture responding to the suffering of victims, thus severing the link between the responsibility of corporations (studied by the historical commissions) and the compensation paid to victims.

As I demonstrated in the book, the American model of structural reform litigation had to abstain from questions of moral blame in order to repair structural failures. In contrast, the criminal model offered by the Nuremberg trials focused on moral blame and therefore had to limit its reach only to the culpable individual. Moran asks if there is a way to integrate the recognition of both moral blame and institutional responsibility. In this respect, she rightly points to important developments in private law concerning the general duty of care in negligence law, as allowing for private law today to engage with structural responsibility without limiting its view to the deviant individual (as exemplified by litigation concerning the system of residential schools for First Nations children in Canada).

Another question raised by some of the contributors is whether THL can provide a model for the future. Chimène Keitner, who addresses the “civil” law legacy of the Holocaust litigation, wonders whether the THL can serve as a model as it may have been feasible only due to particular historical circumstances: “[O]ne could justifiably wonder whether the model of transnational Holocaust litigation could ever be replicated to enable wide-scale corporate accountability for participation in mass atrocities outside of the forum state” given the significant unraveling of the idea of universal jurisdiction (Kiobel, 2013; Jesner, 2018), and the ability to bring claims as class actions (Wal-Mart, 2011; Daimler AG, 2014). Annika van Baar, acknowledges the importance of the interplay between law and history in my account of THL and its capacity to challenge common distinctions (between public and private and between ideological and economic motives) that hinder our understanding of business operation during the Third Reich. However, she also doubts whether the THL model could provide a promising model for other contexts, considering the exceptional status of the Holocaust in history.    

The question whether THL can provide a model for the future may be answered by considering the underlying pressures that lead to legal developments in both criminal and private law. The different contributors thoughtfully challenge the model by presenting innovations in criminal and civil law that provide better tools for addressing the problem of collective responsibility and avoiding the false binary choice between individual and state/corporate liability. These include developments in criminal law offering new modes of liability that can implicate corporations (Stewart) and new mechanisms for victim participation (Oehm); and developments in private law that expand the duty of care standard and overcome procedural impediments like immunities and limitations-periods, thus opening up new possibilities for organizational liability (Moran).  

I think that in order to see the larger potential in THL we should broaden our lenses beyond specific legal setbacks. Contra Keitner’s contention that Kiobel and Wal-Mart have rendered THL a historical model that cannot be repeated, I suggest that we consider the wider context of the socio-legal turn to restitution. By expanding our view to cross-cutting developments in Europe as well as in the United States, we may recognize the underlying influences of THL on the emergence of a reparative model of responsibility that integrates historical research with responsibility, compensation and rehabilitation. For example, inspired by the THL model, different government ministries in Germany, including the ministries of justice and foreign affairs, started appointing historical commissions to study their specific responsibility for crimes that took place during the Third Reich (as opposed to their general responsibility as part of state responsibility).[5] Similarly, historian Constantin Goschler[6] contends that the influx of restitution claims in Europe helped to shift attention from the responsibility of the German state to that of municipalities, schools and other local institutions. He argues that while Nuremberg and criminal law portrayed local actors solely as “victims,” it was the turn to private law and its reparative model of justice that helped to expose their agency and co-responsibility and pointed the way to new means of reparation for specific victims. Indeed, as Moran rightly observes, a similar approach has emerged in the United States in relation to new demands for reparations for slavery. While these attempts failed in the formal legal tracks, they led several institutions (such as Georgetown University) to research their history and respond to demands of specific victims groups. We may also note in this context the current turmoil experienced by museums throughout the world in response to demands to acknowledge their colonial legacy, and the rise of provenance research as a device for addressing the problem of looted art.  

In my view the way forward may also require looking backwards to forgotten legal struggles. For example, my current research on formulations of the crime of genocide in the immediate postwar period, which were developed by victim groups, both Jewish and Polish, who contested Nuremberg’s war-crimes framework, reveals an early attempt to promote an integrative approach linking criminal liability for genocide with collective-group reparation and rehabilitation. The separation between the two tracks, which transpired for example in the Genocide Convention of 1948 (which excluded cultural genocide and rejected the remedy of reparations), is at the root of the current movement of reparative justice.

In conclusion, instead of asking which law, civil or criminal, is better suited to address structural crimes, I believe that we must try to understand how both could and should adapt to meet the challenge. The lessons offered by THL can help us do just that.

[1]  Robert Gordon, Taming the Past, Essays on Law in History and History in Law, 382-415.

[2]  Id. at 411.

[3] Id. at 412.

[4]  Id. at 409.

[5] For example, the Independent Commission of Historians was appointed in 2005 to examine the role of the foreign service during the National Socialist era. Its report appeared as a book, Das Amt und die Vergangenheit: Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik Gebundenes Buch (Munich: Karl Blessing, 2010) by Eckart Conze, Norbert Frei, Peter Hayes and Moshe Zimmermann.

[6] Constantin Goschler, “The Dispossession of the Jews and the Europeanization of the Holocaust,” in Hartmut Berghoff, Jürgen Kocka, & Dieter Ziegler (eds.), Business in the Age of Extremes: Essays in Modern German and Austrian Economic History, Publications of the German Historical Institute (Cambridge: Cambridge University Press, 2013), 189-203.

Towards Synergies in Forms of Corporate Accountability for International Crimes

Leora Bilsky has written a very impressive book entitled The Holocaust, Corporations, and the Law: Unfinished Business. The book addresses corporate responsibility for human rights violations, focusing particularly on the Transitional Holocaust Litigation (THL) with Swiss and German companies over the past decades. Necessarily, any serious scholarly treatment of this issue requires considerable intellectual breadth, in large part because the topic sits at the intersection of a broad range of interconnected fields. Bilsky has written what is, in my opinion, of the most sophisticated scholarly treatments of these issues, weaving together an impressive array of insights from different disciplines into a compelling unified whole. She makes a very eloquent, original, and profound contribution to questions of corporate accountability for human rights violations by pointing to the upsides of civil settlements in terms of structural legitimacy, victim participation and historiography. Her beautifully written argument draws upon and makes significant contributions to Harold Koh’s views of transnational litigation, to Susan Strum’s pluralist reformulations of structural reform litigation, and Michael Marrus’s critique of these cases. The final product is by far the most developed and articulate argument for the importance of civil liability as a response to corporate implication in mass violence, and I recommend it very highly to friends and colleagues.

I find Bilsky’s overall thesis very convincing—there are many reasons why settlements based on civil processes are preferable responses to transnational corporate implication in atrocity. If I have any hesitations, they are minor and probably arise from her focus on post WWII accountability for corporations implicated in the Holocaust based on international criminal law (ICL) as espoused in the Nuremberg Charter, as distinct from modern ICL and its potential reach in the contemporary world. The dominant influence on my reactions is, I confess, an extended period of time thinking about the responsibility of businesspeople and their corporations for international crimes from a comparative criminal law perspective, which is an approach Bilsky reasonably finds less attractive. In defending the significance of civil settlement, she argues throughout the book that “criminal trials are poorly suited to addressing corporate accountability,” (p. 15) and that the focus on criminal law “blinded Arendt, Jaspers, and others from considering the possibilities that other areas of law can offer.” (p. 34). I would agree with both of these statements in many instances, but I wonder if they might be overly categorical if interpreted as universal commitments, with respect to Nazi criminality but especially for atrocities elsewhere.

To begin, let me offer three relatively inconsequential areas where I felt Bilsky may have sold contemporary ICL slightly short in her otherwise compelling justification of civil settlements as a form of redress for wrongdoing during the Holocaust. First, her perfectly valid critique of the (in)efficacy of criminal law as a response to corporate implication in the Holocaust is not focused on modern ICL. As a consequence, her recitation of the failures of conspiracy (p. 18) and criminal organizations (p. 20) within the Nuremberg Statute as redress for corporate malfeasance during WWII do not tell us so much about the strengths or weaknesses of current law. Both conspiracy and criminal organizations are something of an historical embarrassment for modern ICL, which has replaced them with a plethora of “modes of liability” that might (and increasingly do) implicate corporations and their representatives. These modern “modes of liability” include everything from co-perpetration to superior responsibility, aiding and abetting, and just plain old perpetration. As a class, the concepts cast a legal net across modern corporate practices that likely transcends the law enshrined in the Nuremberg Charter. This reality seems to limit the extent to which lessons from Bilsky’s well-documented case studies can be transposed from the particular to the general.

In a similar vein, Bilsky appears to see ambiguity in the notion of complicity, which she argues militates against the use of criminal law norms in favour of THL-style processes. For example, after addressing some of the nuanced complexities of corporate collaboration with the Nazi State, she argues that “[w]e would be hard pressed to find consensual norms on the complex issue of the responsibility of economic ‘enablers,’ especially when the responsibility for the firms’ actions is intertwined with political actions of a corrupt state.” (p. 87). This position seems to overlook that other “modes of liability” have major implications for modern business as well as the advent of courts, international and otherwise, applying different iterations of complicity in trials for international crimes over the past twenty years.[1] Focusing just on the latter, it is true that the majority of more recent complicity cases have not involved economic actors, but several have, and I am not aware of any of these cases struggling with locating concrete norms, outside judicial debates about complicity in the ATS context. And yet, I have argued elsewhere that understandings of complicity in ATS litigation were never entirely true to the concept’s various legal meanings in criminal law.[2] Moreover, the most interesting of ICL complicity cases against economic enablers have occurred in domestic courts,[3] where local norms that presumably enjoy strong democratic credentials apply. And finally, complicity is one of the most discussed topics in the theory of criminal law,[4]  which speaks to an ever-growing understanding of its normative import, including in difficult cases.

Third, I am not entirely convinced by the argument that the lack of settled legal meaning about corporate responsibility militates against ICL in favour of a negotiated process focused on restitution, engaging victims directly, and enabling historiography by true historians. For Bilsky, attempts to ground the legitimacy of transnational public law litigation in the widespread acceptance of international norms are “unable to address the normative uncertainty characterizing many transnational struggles for justice, in particular the struggle for corporate accountability.” (pp. 84-85). I agree that the advantages of civil settlements that Bilsky presents are marked, and that they warrant real attention in concrete cases outside the THL case-studies she explores, but I am less sure that I see indeterminacy in current ICL as a problem to the same extent. Leaving aside broader jurisprudential disputes about the ability of any normative system to immunise itself from indeterminacy, I worry that Bilsky’s views on the ambiguities of corporate responsibility for international crimes tend to draw exclusively on disputes that were housed within the now (nearly) moribund ATS. Yet, once again, corporate civil responsibility within the ATS appears to have obscured the reality of corporate criminal liability for international crimes in national courts.[5] In some instances, this legal reality is explicit in national law, suggesting that ICL in various national legal systems may sometimes be a viable companion to civil cases, including those that result in settlements. And importantly, debates about the liability of corporations for international crimes cannot obfuscate the ability of criminal courts the world over to try businesspeople as individuals, further undermining recourse to ATS debates about corporate liability as a basis for dispensing with the criminal law tout court.

Thus, I read Bilsky’s very insightful work as adding a new layer to a broader set of transnational accountability options to be deployed pragmatically, not as an argument for the ascendance of civil redress and/or settlement over and above other regulatory possibilities as a blanket rule. In line with this thinking, I’ve used philosophical pragmatism as a frame in other work to plot the relationship between different forms of accountability in corporate contexts,[6] in ways that may be helpful in charting a contingent view of Bilsky’s important contribution.

In particular, because the literature inadequately attends to the transnational dynamics Bilsky takes so seriously, I have criticised all sides of the debates about the following three questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers.[7] In my view, debates about these issues reveal a recurrent tendency to presuppose what I call the perfect single jurisdiction in a way that overlooks globalization, the blind projection of local theories of corporate accountability onto global corporate practices, and a perspective that sometimes seems insensitive to the reality of corporate crimes in the Third World. By adopting a pragmatic frame, however, I doubt that any of these questions can be answered in categorical terms that are divorced from context.

As part of this approach, I hope that a consideration of the countervailing upsides of a criminal law framing will complement Bilsky’s valuable criticisms of it in the THL context. While my earlier work explored these questions in greater detail than I can replicate here, I pause to offer two sets of conceptual arguments that may favour the deployment of criminal law over and above civil remedies in certain circumstances.

First, criminal law is often likely to be a preferable vehicle for communicating moral blame for corporate participation in atrocity. In a section of earlier work entitled “Is Civil Liability Sufficient for Atrocities,” I inquired whether, for all its obvious benefits, civil liability is a sufficient response to what Raphael Lemkin once called “barbarous practices reminiscent of the darkest pages of history.”[8] Criminal law theorists argue that the criminal law serves a particular function that is not reducible to civil restitution. Doug Husak, for instance, asserts the autonomous value of criminal responsibility outside its intersection with tort liability by arguing that the criminal law “has an expressive function.”[9] In doing so, he asks how “could mere compensation possibly convey the stigma inherent in criminal punishment? If the state has a substantial interest in expressing condemnation, it is hard to see how a non-punitive response to core criminality could be adequate.”[10] Similarly minded, George Fletcher argues that “economic analysis misleads us by reducing punishment to the prices that actors pay for engaging in their preferred conduct.”[11] Thus, scholars like Dan Kahan argue that in the corporate context, “substituting civil liability for criminal might be expressively irrational.”[12] In certain especially egregious circumstances, these arguments might serve as a basis for prioritizing criminal not civil redress.

Second, a unique focus on civil liability risks allowing companies to absorb the cost of responsibility for international crimes as an incidental part of normal business by passing this expense on to consumers, who pay incrementally more for weaponry, games consoles, cellphones and engagement rings. In other words, civil liability might allow corporations to purchase massive human rights violations, or equally seriously, shield culpable businesspeople from serious criminal accountability. To address these concerns, many scholars argue, first, that the dividing line between corporate criminal and tortious accountability should be demarcated along essentially moral lines, based on whether the conduct in question was sufficiently grave to warrant outright prohibition or whether it should be priced,[13] and second, that corporate accountability must go hand in hand with individual responsibility.[14] Whether or not these ideas were practically germane in the THL context, I believe that they retain relevance alongside civil settlement as possible responses to transnational corporate implication in atrocity. Much depends on context.

Thus, I am left at the end of Bilsky’s important book wondering about ways of generating synergies between different forms of corporate accountability, including the settlements that she has so ably placed within the scholarly imagination as an important option. There is much interesting literature exploring possibilities of synergistic accountability, although to the best of my knowledge, these arguments are yet to be extrapolated into a transnational context. As an example, Samuel Buell supports the continued availability of corporate criminal liability as the “sharp point” of a pyramid, which includes the full range of civil remedies including those enforced by public administrative agencies.[15] Similarly, Harry Ball and Lawrence Friedman have argued that corporate criminal liability is useful as it allows prosecutors to threaten “the full treatment,” a term that denotes cumulative accountability, including responsibility of individual businesspeople.[16] Finally, Mariano-Florentino Cuéllar has argued that “some will recognize how the presence of overlapping criminal and civil jurisdiction can facilitate the imposition of more severe civil penalties.”[17] In particular, Cuéllar suggests that acquisition of evidence from one legal process might feed into the other, meaning that the two operating in tandem create results unachievable by one alone.

This brings me back to Bilsky’s focus on the Holocaust cases, and a question that has troubled me since it arose in a very interesting conversation with Franziska Oehm some years ago. Over the past decade, German prosecutors have tried a series of former Nazis for their complicity in the Holocaust, from a camp guard who assisted without directly participating in murder, to the accountant at Auschwitz.[18] These men are in their nineties now, raising intriguing theoretical problems about the justification for punishment of defendants that have so little of their lives left to live for events that took place so long ago.[19] Based on preliminary reflections, I am tempted to think that these cases are both defensible and important. Nonetheless, I wonder if there is not something slightly bizarre, perhaps backwards, in the spectacle of prosecuting individual former Nazis as accomplices in the Holocaust for making what are, relative to corporations and their representatives, causally minor contributions. In fact, when I first saw the subtitle to Bilsky’s great book—Unfinished Business—I anticipated that she was referencing exactly this curious anomaly. So despite the important shortcomings of criminal trials Bilsky very fairly points to, I wonder if jarring incongruities of this sort also militate against washing one’s hands of criminal accountability entirely, even within the harrowing set of cases she focuses on.

Overall, I was excited by Bilsky’s occasional use of pragmatism within the book, as well as her lengthy discussion of transitional justice, which I read as adopting philosophical pragmatism as its core ethos. Obviously, any discussion of ideal types in discussions about corporate accountability will need to be highly sensitive to the political realities that ensnare these cases everywhere, and recognize that disaffected communities in Africa, say, are often likely to view any avenue for meaningful redress as an unexpected luxury. Nevertheless, I’m adamant that the enormous insights Bilsky’s excellent book offers are of vital importance in designing accountability mechanisms that fit local contexts as part of transitional justice initiatives, and potentially, in augmenting whatever possibility exists for simultaneously seeking restitution together with moral condemnation. I wholeheartedly recommend this important book to all who are interested in the relationship between commerce, atrocity and accountability, and thank Leora Bilsky for participating in this scholarly exchange.

[1] For a database of international cases separated by incident, see here.

[2] See section entitled Doctrinal Infidelity, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[3] See, for example, The Historical Significance of the Kouwenhoven Trial.

[4] I wrote a short, non-opinionated overview of this theory in Complicity. See also the series of criminal law theorists discussing the interpretation of complicity in the ICC Statute in Complicity in the ICC Statute.

[5] See section entitled From Custom to Legislation, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[6] See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[7] Ibid.

[8] James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N. Y. Univ. J. Int. Law Polit. 121–206, 179 (2014).

[9] Douglas N. Husak, Over Criminalization 186 (2008).

[10] Ibid.

[11] George Fletcher, The Grammar of Criminal Law 61 (2007).

[12] Dan M Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. Legal Stud. 609, 619 (1998) (criticizing economic analyses of corporate criminal liability as inappropriately leaving out the social meaning of punishment).

[13] Coffee, John C., Jr, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B. U. L. REV. 193–246, 230 (1991); Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law and Contemp. Probs. 23.

[14] One of the concerns is that focusing on just corporations would allow individuals to use corporations as disposable shells that inhibit individual responsibility, whereas focusing on individuals alone could lead corporations to scapegoat dispensable representatives. See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[15] Samuel W. Buell, Potentially Perverse Effects of Corporate Civil Liability, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, supra note 88, at 87, 88.

[16] Harry V. Ball & Lawrence M. Friedman, The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View, 17 Stanford Law Review 197, 215 (1965).

[17] Mariano-Florentino Cuéllar, The Institutional Logic of Preventive Crime, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, at 143.

[18] See, for example, Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany, online, February 11, 2016,; Kate Connolly & Reuters, Former Auschwitz guard Oskar Gröning jailed over mass murder, The Guardian, July 15, 2015, (last visited Jan 28, 2019).

[19] The most striking of these cases involves prosecuting an alleged accomplice in Nazi crimes in youth court even though he is now 94 years old. See Reuters, Nazi war crimes suspect, 94, faces German youth court trial, The Guardian, September 21, 2018, (last visited Jan 28, 2019).

Transnational Corporate Accountability: How to Finish Unfinished Business?

Franziska Oehm is a PhD candidate at the University of Erlangen-Nürnberg. Her research focuses on the intersection of human rights protection and corporate liability in international and transnational criminal law.

Unfinished business”, the subtitle of Leora Bilsky’s “The Holocaust, Corporations and the Law” not only refers to corporate accountability for crimes committed during the Holocaust but stresses the importance of continuing scholarly engagement with practitioners’ efforts to dismantle barriers to accountability for corporate involvement in mass atrocities today. From a criminal law perspective, the lack of more recent engagement with corporate international crimes, for instance at the International Criminal Court, is often seen as a systematic failure in the international criminal justice system to examine conflict situations holistically. Apart from some recent transnational lawsuits, for example regarding the situation in Syria, corporate crime is rarely in the spotlight during post-conflict legal proceedings or during debates about transitional justice.

The Nuremberg industrialist trials, however, at least selectively addressed industrialists’ involvement in the Third Reich and the Holocaust, and thereby established a basis of reference in search of a corporate accountability system. One could think of recommencing this line of cases now in line with the recent resumption of criminal prosecutions conducted against former Nazi concentration camp guards in Germany (see for instance here), which rely on the abolition of the statute of limitations for the offence of murder. While similar prosecutions could technically be initiated against former Nazi business leaders, procedural hurdles make them rather unlikely, because corporate criminal liability is not included in German criminal law. In addition, the passing of time makes locating living representatives of high-ranking Nazi industrialists who were responsible for international crimes improbable.

Against this background, Bilsky advocates for transnational class action litigation and settlement as a well-suited and possibly more effective approach to addressing corporate involvement in large-scale human rights violations nowadays. Transnational class action litigation and settlement derives from a series of lawsuits in the 1990s against a variety of corporations that were involved in the Holocaust and Bilsky ably conceptualized these cases as Transnational Holocaust Litigation (THL). Parts of her excellent book rely on comparisons, similarities and synergies of transnational class action settlement and criminal law, that prompt me to offer some reflections on the transferability and comparability of the THL approach to other transnational human rights litigation cases.

First, in my understanding the transnational element stems from the often-occurring geographic discrepancy between the location of the corporation’s seat and the atrocities’ effects, the nature of the atrocity, and the forum of the lawsuit. In such transnational civil lawsuits, both national and international law can be applicable to substantive questions, whereas procedural rules will derive from the domestic forum of the lawsuit. The international community lacks a supranational institution competent to deal with class action lawsuits concerning corporate human rights abuses. Therefore, transnational settlement litigation can only take place within the jurisdiction of national courts. National jurisdictions continue to determine the procedural framework for transnational class action settlement, since it is a procedural tool for collective representation in cases of comparable allegations against the same defendant.

However, many national jurisdictions – especially traditional civil law jurisdictions – do not provide for class action. In Germany, for instance, due to a current wave of consumer claims in the automotive sector, a new class action law (Musterfeststellungsklage) came into effect at the end of last year. Although broadening the recognition of collective redress, the new law is not nearly as far reaching as the class action in the U.S. system. It is restricted to consumer-professional relationships and requires prior registration to create binding effects of the ruling that constitutes the alleged violation of law. Furthermore, participants must individually claim the amount of compensation, each with the burden of proof to prove individual damages regardless of prior registration. While those requirements could diminish the concept’s potential success in human rights cases in Germany, this example also illustrates that even if a jurisdiction provides for some sort of class action, the qualification of transnational class action settlement as the better-suited tool to address corporate involvement in mass atrocities may hold for the U.S. or similar legal systems, but would perhaps require a broader global comparative assessment to determine the potential for transnational human rights litigation.

Second, Bilsky elaborates on the victim driven nature of class action lawsuits as one of the advantages compared to criminal proceedings, where the prosecutor adopts the investigative role. She concludes that civil class actions would be the more victim-oriented, participatory approach. While this assumption may hold true for cases where victims of massive human rights violations belong to a well-identifiable group and have had a chance to organize and start a lawsuit, it could also prove otherwise. This could particularly be true for scenarios with a non-identifiable group of victims, or where no representational organization advocates in the victims’ collective interest. In such cases, the prosecutor’s investigative role can be extremely valuable. Furthermore, many international criminal statutes foresee victims’ participation at a later stage during trial, and some national jurisdictions even provide for victims to initiate criminal proceedings, as well as a continuing investigative role during the trial. Such instruments should serve as a model for a more participatory process that points to the role of victims in international, national and possibly transnational criminal proceedings without losing the potential benefit of criminal investigations.

Overall, both the potential of criminal proceedings that derive from prosecutorial investigations, as well as the limitations class action suits throughout the world pose should not be ignored. However, the effectiveness of transnational remedies probably requires a case by case evaluation. Bilsky’s groundbreaking work on transnational class action lawsuits and settlement as a remedy that has indeed largely been ignored in the context of regulatory approaches to corporate accountability will enrich debates and hopefully lead to further development in that aspect of the field.

Transnational Holocaust Litigation and Corporate Accountability for Atrocities Beyond Nuremberg

Annika van Baar is a criminologist and historian, currently working as a post-doc researcher at Resilient Societies, Faculty of Law, Economics and Governance, Utrecht University, the Netherlands. She wrote het PhD research on corporate involvement in international crimes in Nazi Germany, Apartheid South African and the Democratic Republic of the Congo. 

Discussions on corporate accountability for genocide, crimes against humanity, war crimes and human rights violations almost invariably start with a reference to the Industrialist Trials at Nuremberg (1945-1949). These trials are usually invoked as the starting point and background of corporate accountability for involvement in atrocities. In her book ‘The Holocaust, Corporations and the Law’, Leora Bilsky approaches the discussion on corporate accountability using a different set of trials: the transnational civil litigation trials of the 1990s and 2000s. In these trials, victims sought redress from corporations that had been involved in the crimes committed by the Nazi regime during the Second world war. In her fascinating book, Bilsky argues that Transnational Holocaust Litigation (THL) was capable of assigning corporate accountability in ways that criminal law or other types of transitional justice mechanisms could not. She specifically points at the value of the historical corporate data that was opened up by these trials and the resulting historical research. 

Bilsky gives a clear and important account of how the structure and customs of a certain legal approach, such as (international) criminal law or private law, shape the lens through which the corporate wrongdoing is addressed. ICL tends to be seen as the preferred legal approach for crimes as heinous as the Holocaust and, by some, for corporate involvement in atrocities. The ICL approach, however, makes it difficult to effectively deal with collective, structural and mutually reinforcing patterns that underlie atrocities because it tends to deal with the exceptional and individual. 

In this contribution, I would like to consider two often-made distinctions, criticized by Bilsky, that distort common conceptions on corporate involvement in atrocity crimes. The first is the distinction between the public and the private sphere during the commission of atrocities. The second is the distinction between economically and ideologically driven crimes. I end by raising some questions on the likely success of THL-type processes – and the histories they can produce – for transitional and international justice. 

Bilsky shows that a distinction between private actors on the one hand and public actors on the other hand is not clear in the context of the Holocaust. Critical criminologists, such as those who have coined the concept of state-corporate crime [1], argue that ‘what is economic is always political and what is political is always economic’: the private and the public sphere, at the state level, are not easily disentangled. This is especially true for totalitarian and authoritarian states as they tend to align the business sector with their political goals. Governments such as the Nazi regime are able to exercise considerable legal and institutional control over economic actors and restrict the market conditions in which economic actors operate. At the same time, they are dependent on corporate capital, productivity, technology and expertise to pursue their ideological goals.  

This brings us to the strong distinction made at Nuremberg between ideologically motivated crimes, on the one hand, and economically motivated crimes on the other. Historical research has since shown that precisely the interaction between economic and ideological motives is important in understanding corporate involvement in the Holocaust. I would like to add to this referring to two insights from my own (criminological) research on corporate involvement in international crimes.[2]  

First, even when corporations contribute to ideologically driven (and economically senseless) crimes, their corporate activity tends to be motivated by economic considerations: corporations are hard-wired to seek minimization of losses and maximization of profits within the circumstances in which they operate. This is one interaction between the ideological and the economic: the latter tends to be employed to achieve the goals of the former. Cooperation between (ideological) state actors and (economic) corporate actors towards atrocities can benefit both the public and the private actor. In fact, such state-corporate cooperation tends to be presented as mutually beneficial. During the Holocaust, however, as historical research shows, state-corporate cooperation towards atrocities mostly benefitted the state. That business profited greatly from the Holocaust, as Bilsky appropriately underlines, is a persuasive historical falsehood.  

A second reason ideology cannot be fully separated from economic considerations is that ideology can be an important aspect of the social context in which corporations operate. In Nazi Germany, corporate cultures were intentionally nazified and corporations operated under close government control. Therefore, anti-Semitic, anti-communist and pro-Germanic notions were part of everyday life. In Nazi Germany, ideological notions, socially shared, enabled corporations to conduct and continue corporate activity that led to involvement in the Holocaust. These notions contributed to their relative conformity to Nazi policies and enabled them, inter alia, to ‘Aryanize’ their workforces and employ slave laborers to keep up war production while still perceiving their corporate activity to be ‘business as usual’. In other words, as part of societal and corporate culture, ideology can enable corporations to perceive their (profit-seeking) corporate activity as appropriate and desirable even when it violates moral and social (or even legal) norms.  

The interplay between profit-seeking and ideology is not unique to the context of Nazi Germany. In Apartheid South Africa (1948-1994), white South African owners, managers and employees profited from apartheid and never actively opposed its practices even when the South African economy stagnated in the late 1970s. In the face of world-wide anti-apartheid and a common recognition that apartheid economics was irrational, corporations continued to justify their business activities by ideological notions of white superiority and entitlement and through their fear of (black) communism amongst South Africans. They did so even as their profits suffered because their economic considerations and ideological notions had become intertwined.  

Bilsky impressively shows that the model of the THL, as a hybrid legal mechanism, benefits the law-history relationship by spurring history-making that can properly cope with interactions between the private and the public and between the ideological and the economic. For me, however, the question arises what these histories mean to corporations: To what extent can more nuanced and more accurate histories of corporate involvement in the Holocaust contribute to, for example, a change in business culture, looking forward? To my knowledge, there are no indications that the well-researched monographs on German business under the Nazi Regime had any impact on the human rights records of those companies after the 1990s. While value of these histories for understanding corporate involvement in the Holocaust cannot be overstated, their broader relevance might be limited.   

Finally, the status of the Holocaust and the particularities of its aftermath may render the THL model less promising in other contexts. The Holocaust may not be wholly unique as an atrocity but its aftermath and its status, at least in Europe and North America, is exceptional. This raises the question how the model would translate for more contemporary cases such as the involvement of corporations in atrocities in Argentina, the Democratic Republic of the Congo or Syria.  Nevertheless, Bilsky’s book leaves us with the important realization that the search for more adequate accountability for corporate involvement in atrocity crimes should not be fixated on (international) criminal law but should keep an open mind to the value of innovative forms of civil litigation.

[1]  See Kramer and Michalowski, State-Corporate Crime: Wrongdoing at the Intersection of Business and Government (2006).  

[2]  Van Baar (forthcoming) Corporate involvement in international crimes in Nazi Germany, Apartheid South Africa and the Democratic Republic of Congo. (PhD dissertation).