Category Archives: International Criminal Justice

Can We Tell If the ICC Can Deter Atrocity?

Kate Cronin-Furman is a postdoctoral fellow in Law & International Security at Stanford University’s Center for International Security and Cooperation. She is the author of Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocities.


The International Criminal Court opened its first investigations in 2004. In its first 12 years of operation, the court convicted two individuals of war crimes and crimes against humanity, and issued arrest warrants or summonses for 37 others. Today, the ICC is pursuing prosecutions of atrocities on the territory of eight countries and conducting preliminary examinations in seven more.

Most immediately, the goal of these efforts is to punish those responsible for egregious breaches of international law. But the bigger purpose of the court’s existence is to contribute to international peace and security. Underpinning this aim is the hope that by prosecuting the perpetrators of serious international crimes, the ICC can make mass atrocities rarer. In short, that it can deter this type of violence.

“Can the International Criminal Court Deter Atrocity?” by Hyeran Jo and Beth Simmons is one of the first rigorous empirical examinations of this claim. For skeptics (like me) of the ICC’s ability to produce deterrence, the article’s conclusions may come as something of a surprise. The authors find that state actors commit fewer intentional killings of civilians in conflict in the presence of ICC ratification, implementing statutes in domestic criminal law, and action by the court. They find that rebel violence also lessens in the face of ICC action, but not following ratification or legal change.

Even a limited and contingent reduction in violence against civilians would be great news for the ICC’s effectiveness. But the difference in findings across state vs. rebel perpetrators leads me to hesitate before interpreting these results as cause for optimism. The reason for this is that rebel violence seems like the best context in which to test ICC’s impact. The weak results on rebels therefore leave open the possibility that the strong findings on state actors are an artifact of selection effects.

Here is my logic: Analysis of the ICC’s effect on state actors is complicated by the fact that states choose to accept the court’s jurisdiction through ratification of the Rome Statute. For those who have elected to join up, it’s hard to know how the court has affected their behavior. Any reduction in a state’s use of illegal violence that follows accession to the ICC might be caused by the same factors that led the state to ratify—a democratic transition, a commitment to peace and justice, etc.

Jo and Simmons take heroic measures to address this issue, employing controls for dynamics that might explain both ratification and violence reduction in the main regressions and conducting a matching analysis as a robustness check. But the fact remains that selection effects are impossible to rule out. This is a general headache for researchers looking for effects of treaties, because the actors whose behavior we wish to study are the same actors who have chosen to join international legal regimes. The case of the ICC is something of an exception to this rule, though, because there is a set of actors who did not choose to join the treaty, but upon whom its effects might be expected to operate: rebel groups.

It is rebels who experience something closest to “random assignment” of ICC jurisdiction, because they do not participate in decisions to ratify or pass implementing statutes. (Although their behavior may be a causal factor in states’ decisions to join the court.) They therefore most closely approximate a scenario in which we could observe the effect, all else equal, of the ICC’s existence. Jo and Simmons’s results suggest that this effect exists, but is limited to a slight reduction in violence against civilians when the ICC has been more active (conducting preliminary examinations and investigations and issuing arrest warrants).

Could the comparatively weaker effect on rebels vs. state actors be explained by something other than selection effects? Absolutely. Jo and Simmons attribute it to the fact that rebels are “likely to be the most difficult case for ICC deterrence”. They argue that this is because they are difficult to apprehend and because they (particularly non-secessionist rebels) have fewer incentives to conform to international norms.

This may be true, and certainly there may be other characteristics of rebels that make them difficult to deter. They may be particularly likely to face the sort of “overriding interests” in committing atrocities that I identify in my 2013 IJTJ article as obstacles to deterrence. A rebel leader’s set of potential futures may look quite different from, and much shorter than, a high-ranking regime commander’s. The prospect of prosecution and imprisonment in The Hague, while unappealing, may simply be one more entry in a long list of equally unpleasant possible outcomes: death in battle, a domestic treason trial, overthrow and execution by your subordinates. ICC deterrence might therefore require a comparatively higher risk of prosecution. And as recent microfoundational work by Michael Broache on the effects of ICC action on rebel groups in Congo shows, their incentive structures are extremely complex—under certain circumstances, prosecution can even provoke them to escalate conflict.

However, there are countervailing dynamics: Evidence about rebel crimes is easier to gather because investigations proceed with the consent and assistance of the territorial state. Rebels can also be arrested more easily than state actors, who benefit from ingrained diplomatic practices of honoring immunities. This suggests that rebels, once charged, are more likely to be successfully prosecuted than state actors. Furthermore, for the first few years of the court’s existence, most of its targets were rebels, indicating that their risk of facing charges was also higher than state actors’.

It is therefore not clear that rebels are categorically less likely to be deterred by the threat of prosecution than state actors. But Jo and Simmons are theorizing broader deterrent effects of the ICC’s existence than those simply attributable to the increased risk of prosecution. They argue as well for a “social deterrence” mechanism, whereby social pressures impose costs on rule violators. This is a critical insight. The ICC (like many international institutions) has limited formal enforcement capabilities, but exists within a web of interconnected norms, institutions, and actors concerned with fighting impunity and protecting civilians. Treating it as a stand-alone institution and focusing on its independent effects on violence against civilians therefore misses most of the story of its impact on international relations.

Jo and Simmons’s account lends itself to the interpretation that prosecutorial and social deterrence are not separate mechanisms, but mutually reinforcing. Several of their findings demonstrate that extralegal mechanisms benefit from the role of the formalized legal institution as a focal point — evidence that both civil society and foreign aid reliance have stronger effects on reducing violence in the presence of ICC ratification than its absence is suggestive. The reverse should also be true, with prosecutorial deterrence operating more weakly in the absence of social deterrence, and kicking in only at higher levels of risk of prosecution. Empirically, that translates into an expectation that actors who are less integrated into the international community, and less beholden to domestic constituencies, would be less responsive to the presence of the ICC. This is likely to be more often true of (non-secessionist) rebels than state actors, perhaps explaining the varying findings across perpetrator types.

My own view is that the findings on the independent impacts of the International Criminal Court should be interpreted with caution, but that this hardly matters. The ICC is not independent of the broader normative context, and its position highlights what Jo and Simmons describe as “the central importance of extralegal deterrents to law violation”. Debates about the ICC’s impact have been too narrowly focused on the question of prosecutorial deterrence. The account of social deterrence offered here is a more nuanced approach to the question of how international institutions can affect behavior in the absence of robust formal enforcement capabilities, and lays the ground for a more productive research agenda on the ICC going forward.

Hey Look at Me: Deterreo, Ergo Sum

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.


“Everything must have a purpose?” asked God.
“Certainly,” said man.
“Then I leave it to you to think of one for all this,” said God.
And He went away.

— Kurt Vonnegut, Cat’s Cradle (1963)

General deterrence is routinely invoked to justify ordinary national criminal law. Intuitively, it seems plausible that would-be perpetrators of common crimes refrain from offending if they fear getting caught and then being sent before a judge. In addition, the existence of an institution that prosecutes and punishes may also deflate crime by inflating the public’s respect for the rule of law.

As a court of law, the ICC investigates, prosecutes, and punishes core international crimes. Unsurprisingly, then, the ICC’s capacity to deter such crimes emerges as a barometer of its effectiveness and legitimacy, as well as a basis upon which to rationalize its existence.

Professors Hyeran Jo and Beth Simmons investigate whether the ICC deters core international crimes. Their methodology begins with a data-set of countries with civil wars between 1989 and 2011. Noting that the Rome Statute entered into force in July 2002 (near the mid-point of the data-set’s lifespan), they attempt to disaggregate the effect of the ICC’s existence upon the number of civilians killed intentionally by government forces or rebel groups in a direct military confrontation. Jo and Simmons control and test for many interceding factors. Their research is comprehensive, meticulous, transparent, elegantly delivered, and expertly presented.

I would like to do two admittedly incongruent things in my comments. The first is to talk more about the ICC’s ability to deter. The second is to suggest that we talk a lot less about the ICC and deterrence. Whether the ICC deters atrocity is difficult to answer, but has become too comfortable and too exigent a question to ask.

Jo and Simmons locate “strong evidence of a reduction in intentional civilian killing by government actors when states implement ICC-consistent statutes in domestic criminal law,” which they indirectly attribute to the ICC’s influence. They conclude that the ICC has stronger positive effects on governments than rebel groups, although they discern an effect on rebels concerned with legitimacy. In the final sentence of their article, they posit that the ICC “has potential to save at least a few lives in some of the most violent settings in recent decades”. After fourteen years of being in operation and four years of becoming fit to begin operating, after the euphoria of Rome, and after well over $1 billion spent – there’s the bottom line.

Might the deterrent effect be even thinner than what the research – however accurate – suggests? The data-set (if I understand it accurately) extends to 2011. The data-set thereby ends early in the game. It ends before the ICC actually convicted anyone. On the one hand, the fact that the ICC has since issued a few convictions could embolden the deterrent effect by revealing the ICC’s punitive muscle to potential human rights abusers. On the other hand, a close look at the ICC’s activities since 2011 reveals the atrophied nature of whatever muscle the ICC may actually have.

The ICC’s two convictions (Lubanga and Katanga) led to prison terms of fourteen and twelve years respectively. Katanga is already free insofar as judges granted his application for sentence reduction last November. By any metric, these are lenient sentences. The ICC has also issued an acquittal. Actually taking cases to trial has exposed the frailty of much of the evidence the OTP relies on to convict and the precariousness of the accessorial liability theories it often submits. High-profile charges have been withdrawn in the Kenyan situation, where the ICC failed to guarantee witness security or testimonial accuracy and was bedeviled by obstruction on the part of the Kenyan government. OTP hibernated the stagnant Sudanese investigations late in 2014: the Security Council lacked assertiveness, Bashir is still in power (perhaps now even more firmly so), and government forces commit ongoing abuses. Happily, two high profile rebel fugitives – Bosco Ntaganda and Dominic Ongwen – are now in ICC custody. But these fugitives turned themselves in willingly. They did so because their other option – staying at large – meant they would probably be killed. They self-arrived at the ICC because it was likely a decent bet – a refuge even – for them.

The ICC may be more influential when it engages in preliminary examinations or initial investigations (i.e. when it threatens to prosecute) than when it actually brings a case to trial and sentences an offender. Colombia might be a case-in-point. This uncorks the fascinating question of the kinds of political conversations and interactivities that the specter of ICC intervention triggers. What are the domestic effects of complementarity? Dancy and Montal link ICC investigations to general domestic human rights prosecutions in Africa in what they call unintended positive complementarity. Nirej Sekhon emphasizes how complementarity reflects Foucault’s governmentality, in which international elites technocratically commune with domestic elites in a process that occludes the marginal (who mostly happen to be the victims of atrocity). Perhaps positive complementarity negates modalities of justice other than criminal trials. Selectivity, too, is a concern: in some situations in which it exercises jurisdiction, for example Uganda, the ICC achieves some justice (for LRA violence) only because it sanitizes an injustice by closing an eye to the violence of the Ugandan government.

Let’s return to the deterrence question. Jo and Simmons focus on the ICC’s ability to deter intentional killing of civilians. This category is capacious. It covers everything from group-based genocide against a defined population (Rwanda, the Yazidis today) to the targeted killing of a few individuals by a small band of specialized armed forces. Meg De Guzman is right to point out that the ICC has a gravity deficit. Although the ICC was created to deliver justice following massive jus cogens ruptures, in practice it has tended – to the frustration of many victims – to prosecute lesser crimes involving less rampant violence, including child soldiering, pillage, and destruction of historic/religious buildings. The ICTY, ICTR, ECCC, and SCSL have to date done heavier lifting when it comes to gravity. I have argued elsewhere that, as violence metastasizes into a collective project, the nature of the criminality shifts. The involvement of the rank-and-file as killers drifts from a deterrable act of deviance towards conformist behavior that normalizes violence in order to eliminate the ‘other’ for the sake of a perceived communal good. It remains unclear to me that criminal law can deter these kinds of killers or that these kinds of atrocity crimes resemble ordinary common crimes upon which deterrence theorists rest their claims. In sum, a refinement to ICC deterrence research might cleave discrimination-based mass violence (genocide and certain crimes against humanity) from other kinds of war crimes. It may be that the ICC’s deterrence capacity grafts better onto the latter category which, in turn, reflects violence that is less widespread.

Why should we talk less about whether the ICC deters? For one, repeatedly asking that very question reinforces a woefully inadequate status quo. This is the status quo in which the ICC is accepted as the best thing we can come up with internationally to deliver justice and prevent violence. There are nevertheless other ways to deter atrocity. These include actuating responsibility to protect and humanitarian intervention, reformatting a more nimble Security Council, and revisiting state sovereignty. These ways are less comforting because they require more skin in the game. Ironically, an ICC with (potential) jurisdiction over a crime of aggression might discourage humanitarian armed intervention because leaders may fear criminal liability when they intervene to help people from tyrants. Non-penal justice mechanisms, moreover, also may excel at building up the social deterrence Jo and Simmons value.

Activists invest greatly in the ICC. Activists do so, however, in a world where it’s unclear that actual atrocity survivors are single-mindedly keen on criminal trials as post-conflict priorities. Victims may wish for things that trials cannot guarantee, such as reparations, apologies, truths, reconciliation, and memorialization.

It is no answer to say: “Just because we have an ICC doesn’t mean we can’t do more!” It is no answer to posit that we live in a world of endless conjunctive permutations of “and,” “ands”, and even more “ands”. As Sarah Nouwen and Wouter Werner have argued, global policy decisions to manage conflict are not made in contexts of endless resources. These decisions entail disjunctive choices and clashes. They sit upon a topography of “ors”. We settle on the ICC as the icon of preventative justice at the expense of other options. The more we foreground the ICC, the more we settle. Yet saddling the ICC with altitudinous expectations – deterreo, ergo sum – just makes it seem weaker and lonelier.

New Symposium: Can the International Criminal Court Deter Atrocity?

Professors Hyeran Jo and Beth Simmons have authored what is arguably one of the most important articles in the field of international criminal justice in recent times. Their piece, entitled Can the International Criminal Court Deter Atrocity? (available here), defies almost all previous thinking about deterrence of atrocity by answering the question in the affirmative. Moreover, in rehearsing the previous literature on the topic, Professors Jo and Simmons lament how “[p]ractically no systematic evidence has been produced to date to support such concerns.” To correct for this deficit, they embark on a multi-faceted empirical analysis to measure the deterrent effect of the International Criminal Court, controlling for a whole range of extraneous factors that might explain the trends they observe.

I will not attempt to summarize their reasoning or findings in any great detail, but several aspects are worth emphasizing briefly. The authors begin by rehearsing much of the earlier (skeptical) literature on deterrence in international criminal justice, then offer a theory of the ICC’s “conditional impact.” The theory they develop assesses (a) prosecutorial deterrence (court-ordered punishment) as well as (b) social deterrence (extra-legal social costs associated with law violation). Having set out their theoretical expectations, Professors Jo and Simmons adopt a sampling strategy that involves 101 states and 264 rebel groups. From their ensuing analysis, they conclude that:

  • “If hypothetically, 100 civilians were killed by a non-ratifying government [of the ICC Statute], our estimates suggest about 53 civilians are likely to be killed, assuming ratification with all other control variables held constant.” (Page 28)

and

  • “a hypothetical well-organized secessionist movement that would have used tactics intentionally leading to the deaths of 100 civilians in the years prior to the ICC’s entry into force might have ‘only’ killed 82 civilians after entry into force, holding all other variables at their mean.” (Page 35)

Quite apart from the significance of offering a new empiricism that leads to a diametrically opposite conclusion to previous literature on this topic, the paper also adds new layers to debates about the value and legitimacy of international criminal justice as a field (I catch myself here since I am more interested in national trials for international crimes than international and critical of tendencies to lump all institutions capable of enforcing these crimes into a monolithic whole in assessing legitimacy). Even limiting our gaze to just international institutions, however, if the ICC deters meaningfully, perhaps its selectivity is less of a problem than previously imagined? Alternatively, perhaps the institution’s politics are worth tolerating?

This paper is also exciting is that, together with Kathryn Sikkink’s recent work, it marks an important empirical shift in literature on international criminal justice that is supportive of the project. In recent years, much of the discourse around international criminal justice has been critical in orientation (for my own contribution in this spirit with Asad Kiyani, see here). Nevertheless, as this blog’s manifesto intimates, I am enthusiastic about the rise of a different, relatively new, and sympathetic discourse about international criminal justice, which I hope informs a broad intellectualism in the field. Thus, I’m grateful to authors and commentators for sharing their expertise on these immensely important issues over the next fortnight. The commentators’ names and posts are listed here.

Judicial Rejection of “Specific Direction” is Widespread

I hadn’t thought to use this blog to write individual posts on new judgments or decisions in international criminal law but at the instigation of some friends, I’m persuaded to offer some very short reactions to a number of interesting blog posts in the past week on “specific direction.” The posts include commentary by Marko Milanović, Kevin Heller, Dov Jacobs and Jens Ohlin. Despite my initial reticence to re-engage with this topic in the blogosphere, it struck me that offering some thoughts on these ideas would also be an appropriate topic to end the year on and a convenient pretext for me to wish readers happy holidays and a prosperous new year.

By way of background, the latest discussions of “specific direction” in complicity stem from a judgment by the ICTY Appeals Chamber in the Stanišić & Simatović case (hereafter “Stanišić), which again rejected “specific direction” as a relevant aspect of the actus reus for aiding and abetting (see paras 94 – 109). As most readers will know, a differently constituted Appeals Chamber at the ICTY had adopted the controversial “specific direction” standard two years ago in a case called Perišić (paras 17 –74), before the same body (differently constituted) reversed itself in a very detailed judgment called Šainović (paras 1617 – 1651). But as I point out below, the judicial treatment of this question since Perišić is actually a lot thicker than this brief history would suggest: rejection of “specific direction” is far wider.

To review, I was opposed to “specific direction” when it first emerged in Perišić. I have always thought that “specific direction” as announced by the ICTY in that case was a misreading of casual language in Tadić. I won’t rehearse everything I wrote opposing “specific direction” at the time, but I do want to reiterate my empirical findings that the concept had no grounding in customary international law, comparative criminal law or previous discussions of the theory of complicity by leading experts (see here). In addition, I also wrote a blog post on Opinio Juris responding to Kevin Heller’s thoughtful defense of the doctrine. To the extent that experts at the national level have considered this problem, this is the established orthodoxy on the topic.

To complete this (overly) long introduction, I should say that I’ve always insisted that specificity is one of the many difficult questions in the theory of complicity (see here). For this reason, I’m looking forward to reading Sasha Greenawalt’s new draft article on the topic in the new year, which discusses “specific direction” by drawing on much of the voluminous and difficult literature on the theory of complicity (sorry for the delay getting to this Sasha). I very much admire Sasha’s work and I’m very pleased to have colleagues engaging with this thorny literature, especially if they reach different conclusions to mine. As I’ve mentioned public recently, I believe that a major public debate on complicity will be a great benefit to the world, even if no consensus ever emerges about its contours.

With all these preliminaries said and done, I set out below a very short list of thoughts about the most recent emanation of the “specific direction” debate in the blogosphere. I hope some of my reactions are helpful:

  1. I would like to suggest that our discussion of “specific direction” would be far clearer if we dropped the word “direction” out of “specific direction,” calling this the specificity issue in complicity or some other clearer label depending on what we mean. As I say, “specific direction” was very casual language first employed in Tadić that didn’t really mean terribly much before Perišić (see here). The definition the Perišić court gave the concept really does the specificity problem a disservice – recall that according to the Perišić definition “specific direction” entails: (a) an assessment of whether the recipient of the aid is “an organisation whose sole and exclusive purpose was the commission of crimes” (Perišić Appeal Judgment, para. 52); (b) whether the aider “endorsed a policy of assisting” (Perišić Appeal Judgment, para. 52); and (c) a distinction based on whether the aider is present at the scene of the crime or not (Perišić Appeal Judgment, para. 39, 70). I maintain that these positions are clear misreadings of complicity and that they only detract from: (a) whatever there is that’s genuinely problematic about the specificity problem in complicity; and (b) attempts to account for that residual difficulty in the theory of blame attribution writ large. I also believe that, because advocates seldom define what they mean by the term “specific direction”, we frequently talk past one another.
  1. My main contribution to the discussions in the blogosphere, however, is to place a far larger number of cases on the table for discussion. In particular, I think it bears noting that many courts have now rejected “specific direction,” such that a differently constituted court in Stanišić could not really have taken us back to Perišić even if it had decided to readopt the controversial concept. The list of cases that have rejected “specific direction” now includes:
  • The ICTY Appeals Chamber in Šainović (paras 1617 – 1651);
  • The ICTY Appeals Chamber in Popović (para 1758)
  • The ICTY Appeals Chamber in Stanišić (paras 94 – 109)
  • The ICTR Appeals Chamber in Nyiramasuhuko et al (see para 44 of Judge Agius’s Separate Opinion)
  • The Charles Taylor Appeal Judgment (see here, paras 466 – 481).
  • The ECCC in Case No 002/01 (see paras 707 – 710)

I got the sense from some of the commentary in the last week or so that the rejection of “specific direction” here again in Stanišić was somehow a farce given the composition of the bench in this case or the lack of reasoning substantiating the position. To my mind, the first of these arguments plays down that a variety of courts, at both trial and appellate levels, have rejected the standard. Thus, the supposition that a differently constituted court would have just reinstated Perišić as a norm in ICL as a field is, I think, unconvincing.

  1. To expand on this observation, I plot here the number of judges across all courts and tribunals who have voted for and against “specific direction,” from Perisic onwards. By my rough count, at least 20 different judges have had opportunity to pronounce on “specific direction” if one includes the Perišić court and everyone since in the different cases I list in 2 above. Three judges endorsed the concept in Perišić, and now Judge Afande has on entirely different grounds, but that still leaves a full 16 judges who have voted to have it overturned, some multiple times. By the by, this includes Judge Khan in Nyiramasuhuko, which means that even in Stanišić, the Agius/Afande coalition would likely have been inadequate to reinstate the standard had the judicial changes many lament not taken place. Nevertheless, even if Khan had been on the case and helped reinstate “specific direction” in Stanišić, the resulting judgment would still be at sharp odds with the vast majority of judicial thinking on the topic. Four times more judges think it is incorrect than are willing to endorse it.
  1. Looking through these more recent cases post Perišić, I read one additional judgment (not in my list in 2 above) that I think warrants mention. The ICTR’s Ngirabatware Appeals Judgment was presided over by Judge Meron and included Judge Liu, but it also involved three other judges who were entirely new to the issue. Logically, counsel for the defense argued, drawing on Perišić, that “the Trial Chamber erred in failing to determine whether the ‘specific direction’ requirement of aiding and abetting had been satisfied in his case.” (see para 145). The Appeals Chamber unanimously rejected this argument, despite their finding that “the Interahamwe used at least some of the weapons Ngirabatware distributed […] during the attacks and killings” (see para. 148) (my emphasis). Again, I’m not sure what “specific direction” means in its best light, but if it operates to deny complicity where conduct has a dual use, then surely Ngirabatware’s conduct was not “specifically directed” and he should have been acquitted. I suspect that people may argue about this given Ngirabatware’s intentions (separate from “specific direction”), but I wanted to highlight the case to suggest that even the minority of judges who advocate for this controversial standard in complicity are less than clear about when it applies and how.
  1. On the issue of substantive reasoning, I don’t necessarily share the concern about the absence of deep reasoning in the Stanišić Judgment. I take this position because the prior decision in Šainović was surely amongst the most meticulously researched judgments in the history of this discipline, drawing on the criminal law of an enormous number of states (see Šainović Appeal Judgment, paras 1617 – 1651). I’d written a doctorate that addressed the comparative law and theory of accomplice liability in ICL, then four years of further research on the topic thereafter, but still there were many sources in this judgment I’d never even heard of before. I can’t imagine what it took to acquire and analyse all these legal materials in such a short period of time, but however one views “specific direction” as a normative concept, I think we have to acknowledge that this depth of research and justification goes far beyond what criminal courts normally offer. In fact, to the best of my knowledge, it is without parallel on any other issue in ICL before or since. Accordingly, I didn’t see terribly much reason for the Stanišić Appeal Judgment to reinvent the wheel on this; it had been fully addressed previously. To be clear, no court has offered a compelling theoretical explanation of this problem, but I believe that task falls to academics.
  1. This brings me to Judge Afande’s apparent endorsement of “specific direction” by way of dissent in Stanišić, wherein he is the first and only judge to defend the concept since Perišić (Judge Tuzmukhamedov questioned the need to address it on the facts in Šainović but he did not opine on the propriety of the doctrine itself and Judge Agius has included a paragraph in two judgments maintaining his earlier reasoning without further argument). Although I respect Judge Afande’s attempt at finding a third way through a difficult legal problem and competing dissenting positions, it strikes me that: (a) the account he offers is no longer speaking about “specific direction” as espoused by Perišić (see my point 1 above); (b) his methods for this novel third way are at times highly suspect, like the use of dictionary definitions to cut through all previous debates; and (c) the resulting position is hard to reconcile with any of the different schools of thinking about blame attribution in the theory of complicity (see here). Perhaps others will defend Afande’s reasoning, but personally, I have some difficulty imagining that it will prove adequately convincing to bring so many judges around to readopting “specific direction” given the widespread judicial disagreement with it now. My guess is that only the in-depth work of scholars will be able to do that at this point, to the extent that they are able to establish that the problem of specificity (or whatever more accurate label we can attribute to the problem) cannot be accommodated anywhere else in conventional theories of blame attribution.
  1. Finally, a brief word about the changes to the composition of the bench in Stanišić. As my colleagues have pointed out, two of the judges were replaced with others before the Stanišić appeal hearing. I know very little about this backstory and have consistently steered clear of the various political controversies surrounding “specific direction”, but I confess that I don’t fully understand the complaint that the composition made the decision predictable or arbitrary. Judge Meron, himself an advocate of “specific direction,” appointed one judge for and another against “specific direction.” I see no scandal. The orders doing so were perfectly hum-drum, speaking about “the appeal management and case distribution needs of the Tribunal.” Isn’t this entirely normal and very banal? As we now know, it’s unlikely to have changed anything in the concrete case (Khan appears to be against “specific direction”) or the field as a whole (the vast majority of ICL judges clearly oppose “specific direction.”) As for predictability, I’m not sure what the problem with that is either. Many would argue that predictability is highly desirable in a criminal trial. Moreover, judges the world over almost always come with a known set of legal commitments. Think of the US Supreme Court. The parallel isn’t entirely direct, but I wanted to raise these points because I’m not convinced that this situation at the ICTY is quite as bad, surprising or irregular as some of the previous commentators have suggested. To my mind, the only thing that would be objectionably arbitrary is if, by chance, the very few international judges prepared to endorse “specific direction” again found themselves on a single appellate bench.

In any event, I hope some of the foregoing is helpful. I’ve written this uncomfortably quickly, so I hope readers will correct my errors, if there are any. Once again, I encourage scholars of all stripes to engage with this issue and the very many other difficult problems in the theory of complicity. As I mention, I believe they are part of an important struggle to lead ethically decent lives in a world that is at once highly inter-connected and very dysfunctional.

Happy holidays to one and all.

 

The Argor Heraeus Decision on Corporate Pillage of Gold

Earlier this year, a Swiss federal prosecutor wrote a reasoned opinion declining to prosecute a company named Argor Heraeus for pillaging Congolese Gold. I am grateful to Bénédict De Moerloose at TRIAL in Geneva and Ken Hurwitz at the Open Society Justice Initiative for their blessing to post the prosecutor’s decision (hereafter “the Decision”) here. The original German version of the Decision and an English translation the Open Society commissioned are now available in the links in this sentence. To the best of my knowledge, these documents are not online elsewhere, although the prosecutor did make them public by sending them to journalists (see here) and to the parties to the complaint.

I thought to write a neutral and constructive legal assessment of the prosecutor’s decision given that, some years ago, I wrote a legal study of pillage as applied to natural resources (see the English version here and the French version here), as well as an academic article that used the fact of a formal investigation against Argor Heraeus as an illustration of an important new legal development (see here). For present purposes, my neutrality is ensured by the fact that I know nothing whatsoever about the veracity of the allegations in the complaint, and I certainly do not vouch for or endorse any statement of fact about this case in the Decision or elsewhere. Accordingly, I also cannot form an opinion about whether or not the conclusion is correct.

Instead, I want to offer a balanced legal appraisal of the prosecutor’s reasoning in this the first formal document to discuss corporate pillage of natural resources ever. As will become apparent, I consider that the bulk of the legal reasoning is excellent but it is occasionally slightly erroneous – to the company’s benefit as well as its detriment. I hope my reactions are useful to reflections about this and other pillage cases moving forward, especially for a separate new case against a Belgian businessman involving the alleged pillage of Sierra Leonean diamonds, which has just resulted in an arrest in Belgium.

I resist the temptation to rehearse the factual allegations against Argor-Heraeus since these are contained in the Decision itself. Instead, I focus my legal assessment on pillage alone, even though the back end of the Decision also considers money laundering. The paragraph numbers I use within my headings below correspond to the paragraph number used in the Swiss prosecutor’s Decision. I have also cross-referenced relevant portions of my work with the Open Society on pillage whenever possible in the hope of providing a resource for those who wish to pursue these questions in greater depth than I can offer here.

Para 5.1.2 – For Private or Personal Use

The Decision adopts the definition of pillage set out in the ICC Elements of Crimes, which include the requirement that “The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.” In the ICC Elements of Crimes, this particular element is accompanied by an asterisked footnote, which reads: “As indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute the crime of pillaging.” I certainly understand that adopting this definition of pillage from a source as apparently authoritative as the ICC is attractive, but I have argued that this element of the definition of pillage in the ICC Elements of Crimes is not part of the crime of pillage and courts have vindicated this position.

In the Pillage Manual (see paras. 16-20), I set out how this “private or personal use” element in the ICC Elements of Crimes is: (a) not binding even on the ICC; (b) inconsistent with the exceptions set out in the Hague Regulations of 1907; (c) at odds with the vast majority of pillage cases post WWII, which involved prodigious pillage of natural resources to further the Nazi war machine, not for personal or private profit; (d) inconsistent with the case law of other international courts and tribunals that define pillage without referencing “personal or private use”, and (e) at odds with the explicit finding of the SCSL that “the requirement of ‘private or personal use’ is unduly restrictive and ought not to be an element of the crime of pillage.”

It is not evident that the issue played any real role in the ultimate result in the Decision, but legally speaking, the question matters a great deal because this aspect of the definition in the ICC Elements of Crimes arguably implies that armed groups can expropriate resources for military purposes during war, which I think is not correct save under very specific circumstances I set out in the Pillage Manual (see paras. 78-100). Although not especially pertinent here, the error is somewhat unfortunate in that it disseminates an inaccurate message about the significance of pillage for resource wars.

Para 5.1.2  – The Element of Force

Within the portion of the reasoning dedicated to defining pillage, the Decision also stipulates that “[t]o some extent it is also required that an element of force must be present during pillaging.” I do not agree that this phrase should be included in this reasoning insofar as it misleadingly implies that companies or the armed groups they purchase from must use force to commit pillage. While their operations certainly must be “closely related” to an armed conflict (see Pillage Manual, paras. 32-39), force is not an element of the offense of pillage itself. I explain the various reasons why below.

As support for its statement about pillaging requiring force, the Decision refers to in the ICTY’s Mucić Trial Judgment, which reads:

“While it may be noted that the concept of pillage in the traditional sense implied an element of violence [footnote 604] not necessarily present in the offence of plunder, [footnote 605] it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous.”

In my view, there are several problems with the prosecutor’s reliance on this statement in the Decision:

  • The use of force is not an aspect of the ICC Elements that the Argor Decision draws on earlier to define pillage. It seems methodologically inconsistent to rely on the ICC Elements for “private and personal use,” then disagree with them later without good reason;
  • There is a great deal of case law saying pillage and plunder are synonyms, and they are translated between French and English as such. (see Pillage Manual, paras. 10-14) None of these definitions require force;
  • To the best of my knowledge, the words “implied an element of violence” in the Mucić Trial Judgment have not appeared in any of the many pillage cases since this passing reference. It is therefore somewhat surprising that the language resurfaces here; and
  • Footnotes 604 and 605 in the Mucić Trial Judgement provide very weak support for the proposition in any event. They are nowhere near evidencing virtually uniform state practice capable of supporting the proposition’s existence in customary international law, perhaps explaining why the passing comment in Mucić has not appeared elsewhere.

Section. 5.1.3 – Indirect Appropriation

A survey of case law governing pillage shows that the term “appropriate” in the ICC Elements of Crimes includes direct appropriation of property from the owner as well as indirect appropriation from an intermediary by purchasing stolen property (see Pillage Manual, paras. 40-49). The indirect appropriation limb of this interpretation is supported by the literal language of the ICC Elements of Crimes and at least twenty-six cases from post WWII trials, as well as conceptual first principles (see Pillage Manual, paras. 44-49). The Decision attempts to avoid these sources of authority by arguing that “[i]f even one accepts the view of STEWART, the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”

I address the argument about conversion rather than theft of the property that the second aspect of the sentence references further below. For now, I want to make a minor point, namely that the basis for indirect perpetration is not reducible to my view. As the Pillage Manual shows (see paras. 44-49), there are at least twenty-six incidents of indirect appropriation in the history of pillage cases, and generally, this extent of practice is more than adequate to ground an interpretation of customary international law in international criminal law. As I go on to mention, this interpretation of pillage is also conceptually coherent – although many legal systems disaggregate receiving stolen property from theft, others do not, and it is coherent to treat subsequent transfers of property as a new appropriation depriving the true owner of the property (see Pillage Manual, para. 48)

One recent development in the law of pillage that is not mentioned in my earlier work with the Open Society warrants mention here, too. If the prosecutor was concerned that the indirect appropriation principle could implicate consumers of products manufactured from pillaged conflict commodities, there were better ways of addressing that concern. The recent case law on pillage emanating from the ICC requires a “substantial” acquisition of property to constitute the crime, which helps address this concern. Although the term “substantial” is often difficult to define with perfect precision, there is no doubt that it should exclude consumers who purchase commodities constructed from pillaged natural resources. For reasons I mention below (see Section 5.2 below), the indirect appropriation principle is also important in addressing ex post facto causation in complicity.

Section. 5.1.3 – Conversion not Theft

As I mention above, the prosecutor avoids indirect appropriation as an aspect of pillage by arguing that, in any event, “the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”  Apparently, the gold remained the property of a third party intermediary while Argor was involved in refining it. I do not think this argument is quite as clear cut at the Decision suggests; regardless of whether a company actually acquires title, they may have converted the property and conversion may suffice for pillage. In Anglo-American criminal law, the difference between conversion and theft turns on whether the party misappropriating the property wants to take title in the property or not. Interestingly, if one looks at the table of cases at the back of the Pillage Manual (see Annex A), a number of WWII pillage cases involved conversion alone (note that some of the of the “coercion” references should read “conversion”). Conceptually, this makes some sense. The overarching legal test is whether the accused “appropriated” property without the consent of the owner; it makes no mention of whether the deprivation must be permanent or just temporary. In any event, this is a question that requires more careful research and thought. Moreover, in the abstract, an agreement to help an intermediary dispose of conflict gold could make a refinery complicit in the intermediary’s pillage if the agreement existed ahead of time, even if pillage does require an intention to acquire the property permanently. I address a closely related issue next.

Section. 5.2 – Causation in Complicity

The prosecutor makes an argument in the complicity section of the Decision that goes against the company, which I think is probably incorrect. The decision states that:

“The refining and hence increased value of the raw gold by [ARGOR-HERAEUS] is therefore causative of the pillaging by the FNI in the sense that, without the prospect of refining it to fine gold with a standardised gold context, pillaging, illegal trading and smuggling of raw gold would by no means have been a lucrative affair for the FNI.”

This argument is compelling on its face but it is actually an instance of ex post facto aiding and abetting, since the original pillage is complete by the time the company allegedly acquired the gold. There is an interesting discussion of this problem of ex post facto aiding and abetting in modern international criminal law. To make a longer debate short, you cannot make a causal contribution to a completed crime unless you had an agreement to do so ahead of time. Here, it is not clear that this is the case, meaning that the company could not be complicit in the original act of pillage by purchasing the resources subsequently absent some type of collaboration ab initio. 

Consequently, this type of allegation is probably better conceived as complicity after the fact, which was carved off from complicity proper in most jurisdictions over a century ago precisely because of these types of problems with retroactive causation. These problems are part of the reason why indirect appropriation (see Section 5.1.3 above) is such a significant aspect of the law governing pillage – it overcomes this difficulty with ex post facto aiding and abetting by implicating purchasers in a separate act of pillage. For these reasons, following the case law that mandates indirect appropriation was probably preferable to over-extending causation in the realm of complicity.

Section. 5.2 – The Mental Element for Complicity.

There is much discussion about the mental element(s) required for complicity, and I have written about these from a comparative perspective (see here) as well as at the ICC as part of an expert symposium held on this blog some months ago (see here). The Decision weighs in on these interesting discussions by, I believe correctly, insisting that “should have known” is too low for complicity. There are very few systems of criminal justice that consider negligence appropriate as a standard for accomplice liability and I believe it has no role in international criminal justice (although I believe it should be the central touchstone in business and human rights. See here). Nonetheless, there are still grounds for questioning the mental element for complicity the Decision adopts.

In particular, the Decision makes no mention of dolus eventualis. One of the leading Swiss textbooks on criminal law indicates that “Le complice doit avoir l’intention de favoriser la commission de l’infraction, mais le dol éventuel suffit.” (The accomplice must have the intention to favor the commission of the crime, but dolus eventalis suffices). See Michel Dupuis, Bernard Geller & Gilles Monnier, Code Pénal: Petit Commentaire (2012), p. 191. In other words, intention is required, but intention includes a cognitive appreciation of a risk plus a volitional “making peace” with that risk. It is somewhat strange that this standard does not feature in this analysis. I also understand that dolus eventualis was an issue in an earlier Swiss decision by a prosecutor when problems with “neutral acts” arose. Thus, it is unclear why no recognition of this broader mental element for complicity emerged in the Decision, and why so-called “neutral acts” did not reappear here either.

* * *

I hope the foregoing is somewhat helpful. Again, I am in no position to express an opinion about whether this Decision is rightly decided on issues of fact. My kind thanks again to Bénédict De Moerloose at TRIAL and Ken Hurwitz at the Open Society Justice Initiative for offering to post this material here.

JGS

The Expressive Value of Corporate Prosecutions


Wolfgang Kaleck and Miriam Saage-Maasz are Director and Vice Legal Director respectively of the European Center for Constitutional and Human Rights.


The birth of international criminal justice coincided with commercial responsibility for international crimes: the Nuremberg trials were based on a broad understanding of the political, social and economic causes of the Nazi Regime’s unspeakable atrocities. In this light, the prosecution concluded that corporations and businesspeople were relevant actors in the commission of international crimes. In the face of this legacy, the current practice of prosecuting corporations and their managers seems rather regressive. Apart from the ATS civil litigation in the USA, which hardly ever leads to any final judgements or admissions of legal responsibility, there is little modern practice. Neither the International Criminal Court nor any of the international or hybrid tribunals have investigated the responsibility of business actors in a meaningful way.

Still, on the national level there is some change: Since the US Supreme Court restricted the ATS in the Kiobel decision, there are even more efforts to use (international) criminal law at the national level to hold corporations and their managers to account. In the Netherlands a Dutch business man has been convicted of aiding and abetting war crimes committed by Saddam Hussein against the Kurdish minority by supplying chemicals which were used to produce mustard gas. Also in the Netherlands there has been prosecution against a businessman for supplying weapons to Charles Taylor. Many other efforts have been initiated by victims, their representatives and civil society groups. In France and Germany several criminal complaints have been filed against corporations and their managers for allegedly supplying security agencies in repressive states like Syria, Bahrain and Libya with surveillance technology. Also in Germany there are ongoing investigations against a manager of a Timber trading company, which allegedly called police and military forces to raid a village in the DRC and which paid those forces after having raped several women and girls. Such prosecution in not only taking place in the home countries of the companies involved. In Argentina there are several criminal proceedings pending against large Argentine as well as EU and US companies focussing on the corporate complicity in the dictatorship crimes..

Many factual and legal obstacles remain, including the lack of corporate criminal liability in many legal systems, modes of liability which make it difficult to establish the culpability of corporate actors involved in international crimes, complex corporate structures, and factual difficulties in establishing mens rea in these cases. In light of this yet very imperfect and unsatisfying practice, can any human rights lawyer ever promise her clients that criminal prosecution of corporations will bring justice? Should we even try to pursue these sorts of prosecutions or do we simply need solutions within the economic sphere?

Social movements in the Global South and their lawyers have developed a very particular approach to these problems that transcends existing legal categories, without discarding the value of law and criminal prosecutions. A good example can be found in suits that were filed in the aftermath of unionist persecutions under military rule (Argentina) and in the context of corporate complicity in crimes committed during armed conflict (Colombia). Colombia is home to one of the highest levels of attacks on unionists in the world, accounting for half of unionist murders worldwide.[1] According to some sources, over the last 25 years, about 2,500 unionists have been murdered in Colombia by paramilitary and state security forces.[2] At the same time, the level of impunity is high. Unionists are subjected to threats, arbitrary detention, torture and killings, and in some instances, their participation in unions is criminalized.

The government of Colombia is either unable or unwilling to protect unionists adequately. Even after repeated interventions of the Inter-American Commission on Human Rights,[3] the government failed to take the steps the Commission had imposed to protect threatened unionists. An emblematic case is the murder of the unionist Luciano Romero who, on 10 September 2005, was murdered by paramilitaries in Colombia while working for a subsidiary of the Swiss company Nestlé.[4] Five lower-level paramilitary members have been convicted of this murder,[5] and criminal proceedings have been initiated against other paramilitaries, informants and members of the former Colombian secret service.[6] In one of the rulings in this case, justice Nirio Sánchez ordered the prosecution to investigate the company’s role.[7]

In March 2012, the European Center for Constitutional and Human Rights and the Colombian union Sinaltrainal filed a criminal complaint against Nestlé AG and several of its leading figures.[8] The case became necessary because investigations against employees of the Colombian company have not progressed within Colombia,[9] and since they did not extend to the potential criminal liability of the foreign parent corporation. Thus, we have formally raised this question with the Swiss criminal investigative authority in order to determine the possible liability of Nestlé and its managers.[10]

Although regulations on corporate liability have entered into force as part of Swiss criminal law, they have yet to be applied in practice at all, let alone in cases of extraterritorial human rights violations. Corporate liability according to article 102(1) of the Swiss Criminal Code is clearly distinct from common criminal concepts. It is an offense against the administration of justice and is relevant only if the crime was perpetrated from within a company in which there is no identifiable individual who can be held to account. Often, individuals cannot be identified due to a lack of organization, surveillance, or documentation. Thus, the company is punished for lack of organization rather than for the crime perpetrated.[11]

The Swiss Federal Court rejected the complaint on 21 July 2014, as it considered the offences in question time-barred.[12] It thereby deviated from the opinion of broad parts of the literature and the Swiss Federal Council, which consider violations on the basis of corporate liability as continuing offenses, so that a statute of limitations would not run before the underlying shortcomings in the company’s organization are remedied.

Regardless of this outcome, human rights organizations that supported the Swiss litigation hope that the analysis of corporate behavior according to criminal law standards will contribute to the human rights performance of businesses operating in armed conflict and weak states. The proceedings will provide multinational corporations active in these fragile political environments with guidance as to the necessary risk assessment they undertake before entering into these commercial ventures. At the same time, they will contribute to further defining the “corporate responsibility to respect human rights,” as postulated by the former United Nations Special Representative on Business and Human Rights in his Guiding Principles.[13]

Criminal and civil proceedings against corporations for complicity in human rights violations face both practical and legal difficulties. Political interventions in favor of the accused companies constitute another challenge. All these problems can be observed in the cases discussed in this post. They are complemented by insufficient legal regulations to deal with these questions in countries such as Germany and the United States, where related legal challenges have failed. However, it might have been possible to overcome the legal problems raised by this type of litigation—just as it would potentially be possible to overcome them now in the United States and Argentina, where cases are currently pending—if the economic power of the defendant companies had not stymied proceedings.

Still, the cases mentioned here demonstrate that the judicial outcome is not the only measure of success of this litigation. The investigation, documentation and reporting of these sorts of cases are creating a new historical narrative in parts of German, Argentine, and Latin American societies. Often, an important and necessary first step toward ending impunity is to investigate cases of direct involvement in human rights violations. When justice and society accept the occurrence of human rights violations as a fact, it is then reasonable to inquire into the political and legal responsibility of economic and political actors. Legal proceedings in Europe, and later in the transitional countries themselves, can serve as models for human rights organizations and prosecutors all over the world, stimulating public discussions, academic research, and artistic engagement with the topic. In the course of this process, people have the opportunity to interrogate the root causes of a regime’s ruthless past, which constitutes a fundamental element of any effort to come to terms with a history of violence.

 

[1] IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, 31 December 2011, para.262; Escuela Nacional Sindical (ENS), 2.515 o esa siniestra facilidad para olvidar, Ediciones ENS, Medellin, 2007, p.11, http://www.ens.org.co/aa/img_upload/45bdec76fa6b8848acf029430d10bb5a/cuaderno_19.pdf

[2] ENS, n.1, p.11.

[3]The IACHR has granted precautionary measures in favour of several trade unionist, see: IACHR, Precautionary measures of Marta Cecilia DíazSuárez and María MancillaGamboa-ASTEMP, 22September 2006, http://www.cidh.org/medidas/2006.eng.htm ; IACHR, Precautionary measures in favour of Francisco Eladio Ramírez Cuellar, 29 October 2004, http://www.cidh.org/medidas/2004.eng.htm ; IACHR, Precautionary measures in favour of Álvaro Vélez Carriazo et al, 19 May 2004, http://www.cidh.org/medidas/2004.eng.htm.

[4] Amnesty International (AI), Colombia: Killings, arbitrary detentions, and death threats – the reality of trade unionism in Colombia, London, July 2007, pp.40-41.

[5] European Center for Constitutional and Human Rights (ECCHR), Special Newsletter on the Criminal Complaint Against Nestle in the Case of theMurdered Colombian Trade Unioninst Luciano Romero, p.6, http://www.ecchr.de/index.php/nestle-518.html

[6] Ibid.

[7] Criminal Court of the District of Bogota, Judgement in proceedings against Jose Ustariz Acuna and Jonathan David Contrera Puella, 26 November 2007, p.106 cont.

[8] ECCHR, Nestle precedent case: Charges filed in murder of Colombian trade Unionist, 6 March 2012, http://www.ecchr.de/index.php/nestle-518.html

[9] ECCHR, n.6, pp.6-7.

[10] Ibid.

[11] This solution is satisfactory only in part, for it continues to view individual criminal liability as the norm. Large companies often operate in a decentralized manner and with divided tasks. This allows companies to escape criminal liability by appointing nominal directors who do not actually attend to any managerial tasks of their division. They do, however, take responsibility in criminal proceedings in order to unburden the company as a whole. Those nominal directors are then financially compensated for any inconvenience occurring in the course of the proceedings.

[12] Amerika 21, Schweizer Bundesgericht lehnt Mordklage gegen Nestlé ab, 5 August 2014 [in German] https://amerika21.de/2014/08/103485/nestle-bundesgericht.

[13] U.N. Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J. Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework”, A/HRC/17/31 (21 March 2011), Principle 11.

Transitional Justice, Corporate Responsibility and Learning from the Global South


Ruben Carranza is the Director of the Reparative Justice Program at International Center for Transitional Justice (ICTJ). These views are personal and do not necessary reflect those of the ICTJ.


When Latin American countries emerging from military dictatorships began their pursuit of transitional justice thirty years ago, they were not concerned with holding corporations accountable. They were more concerned with finding a balance between prosecuting individual perpetrators without jeopardizing political stability and responding to demands for truth and reparations. (They also didn’t call what they were then doing ‘transitional justice,’ which might be helpful to remember in debates over what kinds of human rights violations should be subject to accountability and whenever those from the global North involved in such debates presume to tell transitioning countries in the global South which kinds of perpetrators they should hold accountable.) But in the last few years, not only have Argentina, Chile and Brazil pursued prosecutions against former military leaders of their respective dictatorships; they have also started to seek the truth about economic crimes and the links between businesses and perpetrators of human rights violations during the dictatorships.

Corporate accountability, corruption, other economic crimes, violations of economic and social rights and disputes involving access to land and natural resources are all part of a broader set of grievances that many in the field of transitional justice simply regarded as background but did not consider inherent to the work of truth commissions, reparations programs or prosecutors. That has changed. There is now more pluralism and transitional justice has evolved from being narrowly focused on physical integrity violations to recognizing that armed conflict, political violence and repression cannot be de-linked from their economic and social causes and consequences. The way taken by transitional justice to get to where it is now might be a helpful map for those working on corporate accountability.

In 2011, Colombia’s Peace and Justice Court sentenced the notorious paramilitary leader known as El Aleman for various conflict-related crimes (this case was one of a number of domestic criminal cases cited in the reparations proceedings submission ICTJ filed in the Tomas Lubanga case). The Peace and Justice Courts are a transitional justice mechanism that imposes reduced sentences on leaders of right-wing paramilitary groups in exchange for confessing the truth and paying reparations. Instead of limiting herself to condemning El Aleman, the judge asked Colombia’s Attorney General to investigate the multinational company Chiquita Banana and to take measures to seize its assets in the country. It is not a thoroughly-argued discussion (the Justice and Peace court’s main mandate is to address the paramilitaries’ individual criminal responsibility) but it demonstrates that domestic courts established as a transitional justice mechanism can help establish certain corporate responsibility.

Before it became harder for victims of human rights violations abroad to sue corporations for compensation in the US under the Alien Tort Claims Act (ATCA), civil actions via ATCA were in effect the extensions of domestic transitional justice initiatives. By demanding compensation through their ATCA action, apartheid survivors belonging to Khulumani, were extending efforts in South Africa to hold corporations accountable through the truthseeking process. The ICTJ amicus brief in support of the plaintiffs argued that the TRC process “did not put an end to the pursuit of accountability for human rights violations committed under apartheid (but) in fact started it.”

But South Africa’s transitional justice experience shows the limits of holding corporations accountable in a transitional justice process animated by ‘reconciliation’ and guided by a design that limited to a matter of days the hearings on the role of business during apartheid. It did not help advance corporate accountability that post-apartheid governments ignored the TRC’s recommendation for a one-off ‘wealth tax’ on businesses that profited from apartheid. The failure of transitional justice in South Africa to hold corporations accountable was inherent in the design of the South African transitional justice ‘model.’ It makes it unreasonable to expect the Khulumani ATCA case to rectify these deficiencies.

But countries such as Timor-Leste, Chad, Liberia, Sierra Leone, Kenya and most recently Tunisia, were not dissuaded from turning to transitional justice as a way of extracting corporate accountability for the role of businesses during dictatorship or armed conflict. In different ways, their truth commissions and prosecutors examined ‘economic crimes’ alongside physical integrity violations, and the role of corporations in both types of abuse. The Liberia Truth and Reconciliation Commission (TRC) devoted 54 pages of its report to defining ‘economic crimes’ and identifying ‘economic criminal actors.’ The effort was inconsistent. The categories of violations, for example, refer to corporations involved in ‘aiding and abiding’ in economic crimes without an explanation of what that meant. On the other hand, the report detailed the impact of illegal timber exploitation during the conflict and the role played by corporations. This was possible because of the collaboration among local civil society, government and international community representatives in the Forest Concessions Review Committee (FCRC), whose data the TRC used. This suggests that when international technical expertise works with and respects local civil society and national government knowledge, examining corporate accountability in post-conflict contexts can be done effectively.

At the start of its work, the Sierra Leone truth commission decided that “perpetrators may be both natural persons and corporate bodies, such as transnational companies or corporations” and that its mandate “is not confined to violations of human rights that might constitute crimes, under either national or international law, nor is it limited to violations committed by States or governments.” The Timor-Leste truth commission not only investigated economic and social rights violations during the Indonesian occupation but found that “violations of economic and social rights did not occur only as a by-product of military operations” but were “intertwined with private and corporate interests,” including the Indonesian military’s partnerships with business persons in the coffee, timber, and oil sectors. These examples demonstrate that normative definitions may be helpful in examining corporate accountability but should not become obstacles to establishing the factual and more complex historical narrative underlying allegations of corporate complicity.

In post-Marcos dictatorship Philippines, foreign corporations had a decisive role in facilitating mutually reinforcing impunity for large-scale corruption and human rights violations (an argument that I have written about elsewhere). Among the transitional justice measures later initiated, three processes led to successful outcomes, all related to the link between human rights violations and economic crimes: a commission prosecuted the Marcos family for corruption and recovered $680M of their ill-gotten assets in Switzerland; an ATCA case filed in Hawaii found the Marcoses liable to compensate around 10,000 victims of human rights violations; and a 2013 reparations law and program is being funded using $200M out of the $680M recovered from Swiss banks.

Tunisia’s Truth and Dignity Commission (TDC) will examine the relationship among repression, resource extraction in the south and land use in the north, to large-scale unemployment and marginalization. Even in countries such as Argentina, a new wave of transitional justice initiatives have led to calls for examining the role of foreign and local banks in financing the military junta or the role of businesses in violent repression. Argentina has set up a special Ministry of Justice unit to examine the complicity of businesspersons in crimes committed during the military junta period.

What lessons stand out from these experiences? Without oversimplifying these complex examples, it is clear that how we define perpetrators, violations and crimes must evolve with the ways in which armed conflict and repression have intersected with economic crimes and business practices. In many of these examples, the roles of banks and financial institutions have to be considered in examining corporate accountability. In countries emerging from the Arab Spring, but particularly Tunisia and Egypt, these cases are assumed to be a matter of transitional justice. Banks and economic policymakers have been implicated in dictatorship-era crimes, including those linking political repression and corruption.

The 2008 ‘Framework for Business and Human Rights” drafted by Special Representative of the Secretary-General on Human Rights and Transnational Corporations is useful. But they are also too broadly-framed, which might explain why banks that have been implicated in laundering dictators’ assets have accepted it since it may not be as consequential as such standards ought to be. This business and human rights framework can be read alongside the 2005 UN Basic Principles and Guidelines on the Right to Remedy and Reparation, which contains many of the norms relied on in transitional justice contexts. Prof. Theo Van Boven, who drafted the 2005 Basic Principles, notes that these were meant to apply as well “to business enterprises exercising economic power.” Norms on the recovery of ill-gotten assets and against large-scale corruption are now codified in the UN Convention Against Corruption (UNCAC). These are rooted in the experiences of global South countries. These norms apply not only to individual dictators with ill-gotten assets or leaders of armed groups who may be implicated in pillage; they also explicitly cover banks and financial institutions and the profits that are the products of human rights violations or international crimes.

In teasing out the meaning of these norms, it will be important to encourage contributions from global South practitioners and policymakers. Reliance on the incestuous reproduction of ideas among those working on accountability and transitional justice in the global North can lead to ‘international standards’ that are disrespected by mostly Western economic actors and disowned by global South governments and activists. This might not seem immediate to academics, but these legal questions have life-changing implications for people in impoverished countries in the global South, many of whom are already marginalized even before the drive for profit and the agendas of dictators or armed groups intersect. When Arundhati Roy challenged the notion of corporate philanthropy, she asked whether the idea was simply to “keep the world safe for capitalism” while masking the role of corporations in creating or maintaining conditions of poverty and exclusion. We should ask why then do we want to pursue corporate accountability? Is the goal simply to make corporations as susceptible to prosecution as individuals? Should we stop at having binding and more consequential regulation of corporate conduct? Perhaps this can be more than that and can instead be an opportunity to reconsider the assumption – now increasingly questioned in the global South –that democratization, human rights and transitional justice can only be pursued in post-conflict or post-dictatorship developing societies that also accept an economic model that ensures the profitability of corporations, particularly foreign capital.

 

Uncharted Territory


Mark B Taylor, Research Director, Rights and Security, Fafo Research Foundation, Oslo


In his excellent article proclaiming a “turn” to corporate criminal liability, James Stewart suggests the tort remedies of the Alien Tort Statute needs some company. Several commenters have already noted that criminal law is not quite a novel approach to corporate involvement in atrocity and they are correct. But it has been a while since the post-war trials of German and Japanese industrialists and little has happened on the criminal law front in that time.

Stewart’s exemplifies his optimism about corporate criminal liability with an analysis of the Argor case. Criminal complaints against corporations are also being investigated in Sweden, in connection with oil extraction in Sudan, and in France in connection to surveillance technology sold by two different companies, one to the regime in Syria and the other to the Qaddafi regime in Libya. There have been several prosecutions of individual business people for war crimes or related offences in various jurisdictions – both in the U.S. and in Europe.

It may not seem like much, but together these developments represent a simple reality: there are today more cases before prosecutors alleging corporate involvement in international crimes than ever before. If one widens the lens to include trafficking cases, or civil cases involving serious human rights abuses, or resulting from environmental harms, there would appear to be a case to be made that companies operating in high-risk zone face an increasing liability risk.

Stewart points tantalizingly into the future when he suggests that there is as yet “uncharted” terrain in the relationship between commerce, atrocity and international crime. About a decade ago, Fafo – along with Professor Anita Ramasastry, Robert Thompson and small group of fellow travelers – began the search for international criminal law options in domestic law. Finding far more black letter than we had bargained for, we proclaimed a “potential web of liability” both criminal and civil. But then, as now, we could find no conviction of a corporate entity for involvement in war crimes, crimes against humanity or genocide. It is true that more cases have been launched in the ensuing decade than previously, but few have ever reached trial.

One explanation for this is that corporate criminal liability is only one legal instrument with which to address a problem that in fact requires a much broader regulatory approach; namely, the problem of war economies. International law has left the problem of war economies undefined and relatively untroubled as a focus of legal research. There is no general rule against economic activity in armed conflict. Profiting from armed conflict is not forbidden under international law. But this hasn’t stopped various initiatives from lurching forward in international fora in response to the pathologies that result from these economies. As already mentioned, prosecutions have been launched in domestic courts over allegations that business entities, both natural and legal persons, have perpetrated or contributed to violent crimes, including war crimes, crimes against humanity and genocide. In addition,

  • International criminal tribunals established in the aftermath of armed conflicts have prosecuted individuals in connection with their role in economic aspects of international crimes, such as forced labour and pillage;
  • Authorizations of various sanctions by the United Nations Security Council under Chapter VII of the U.N. Charter have increasingly sought to limit the flows of men, arms and finance to various conflicts, not least through the counter-terrorism committee;
  • The UN Arms Trade Treaty, passed by the General Assembly in April 2013, came into force in December 2014, marking the first time states at the U.N. have collectively agreed to regulate the trade in a sector vital to the preparation and conduct of conventional warfare.
  • The U.N. General Assembly, and regional organisations such European Union, the Organisation for Economic Cooperation and Development (OECD), and the International Commission on the Great Lakes Region (ICGLR), the U.S Congress and governments in central Africa have introduced measures to regulate the cross-border trade in conflict minerals;

Taken together, these seem to indicate that an increasingly diverse range of international and trans-national law regimes are moving towards the regulation of certain aspects of commerce in armed conflict. But it is questionable – to say the least – as to whether this diverse range of legal bits and pieces adds up to a regulatory whole.

Public scrutiny is increasing, and with it the likelihood of prosecutions. But this shift – if it is a shift – is taking place in a context in which there is real uncertainty as to what is criminal about economic activity associated with conflict or widespread violence…as distinct from what might be unlawful, or what is merely socially or ethically proscribed. Stewart’s “turn” suggests that international criminal law may offer some coherence to this diversity. I suspect he is correct, not least because international criminal law can furnish the substantive norms to help define what is in fact criminal about commerce connected to atrocities.

Stewart’s advice is that we begin the process of charting the relationships between commerce, atrocity and international criminal law. Some of this work has already begun at Fafo, with the support of the NOREF, the Norwegian Peacebuilding Resource Centre. The literature points to the centrality of violence and economic informality to an understanding of contemporary war economies. For applied social science research, this suggests that, for the purposes of charting the relationships between commerce and atrocity, approaches from criminology or the sociology of armed violence may have more to offer our understanding of contemporary war economies than law or economics.

Consider Syria. In the spring of 2014, insurgents – the Islamic State in Iraq and al-Sham (ISIS), also known by its Arabic acronym Dha’ish – leapt onto the global stage by capturing the Iraqi city of Mosul from government forces. As Dha’ish consolidated its hold on territory spanning north-eastern Syria and north-western Iraq, and declared itself to have established a new Caliphate or Islamic State, news reports soon emerged of the looting of bank reserves in Mosul, protection rackets and kidnapping rings, and the integration of Dha’ish conflict financing into illicit global flows, such as fuel smuggling across the border into Turkey, child soldier recruitment in Jordan and a steady stream of foreign fighters arriving to swell the rebel ranks. Combined with donations from supporters in the region and globally, this activity very quickly earned Da’ish a reputation in the media as possibly “the most cash-rich militant group in the world

If states are serious about grappling with the problem of conflict financing, they are going to have to get serious about regulating the economic activities which integrate these war economies to the global economy. Sanctions are one way to do that but, on their own they cannot hope to respond effectively to the diversity of economic activities at issue, not least when large parts of the relevant sectors of global trade – arms trade, commodities – remain largely unregulated.

The phenomenon of insurgents financing their activities through a combination of illicit economic activity and state-sponsored support is not new. Nor is it a revelation that many civilians survive on the very same local and informal economies with insurgents use to help finance their war. But the larger significance of Stewart’s “turn” to corporate criminal liability is, I hope, that we are beginning to ask the right questions about this age old activity. Questions such as How are those of us not living in the conflict zone nonetheless implicated in these war economies? Are there really no barriers to trade which supports murderous insurgents or government war criminals? Who is enabling these illicit war economies to be integrated to the global economy? And are there really no laws against this sort of thing?

 

Accountability for Economic War Crimes


Holly Dranginis is a Policy Analyst for the Enough Project


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

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

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

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

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

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

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

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

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

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

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

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

 

One of the Missing Pieces in the Accountability Puzzle


Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.


Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.