Category Archives: International Criminal Justice

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.

Corporate Criminal Liability for International Crimes? Yes Please


Simon Taylor is a Director and co-founder of Global Witness


Over the last 20 years, we at Global Witness have waded through an endless stream (now a torrent) of corporate and individual abuse, asset-stripping and the furtherance, through financial support, of mass murder and destruction. So with great excitement, I read James Stewart’s paper, “The Turn to Corporate Criminal Liability for International Crimes.” From my perspective, anything that could be deployed to begin the process of holding companies and their officers to account for the kind of behaviours that we regularly expose is a welcome development. So please continue the debate and bring us those tools.

I should pre-empt my comments by stating I am not a lawyer, and have little exposure to legal matters and their finer points beyond the often tough process we conduct to ensure our output stands, despite the brutalities of the UK’s libel laws. That leaves me, I think, with a fairly basic understanding of James Stewart’s arguments, and comments about his paper on the Opinio Juris site. I am also left with many questions. For this reason, I would ask readers to forgive me my likely mangling of terminology, and instead, I hope I can contribute to the debate with a challenge or two, and hopefully provide you with an insight into our world of investigation, exposé and frequent collision with corporate and individual perpetrators.

Some of you will be familiar with our work – from its start with the exposure and shutting down of illegal timber exports from Khmer Rouge areas in Cambodia to Thailand, through bringing “blood diamonds” to world attention, conceiving and co-launching the global Publish What You Pay (PWYP) movement, and our work on banks that take dictators loot, and anonymous companies and trusts that hide the perpetrators. Across our work, there are common themes and many of them relate to the mechanisms and facilitators used, not to mention the legal inadequacies that variously aid and abet the perpetrators.

Global Witness “investigates and campaigns to prevent natural resource-related conflict and corruption and associated environmental and human rights abuses.” For the purpose of this discussion, think of the following question: How could we ensure that exploitation of natural resources can lead to a positive development outcome given that the natural resources of a country generally belong to the people of that country? Rather than what we currently see, with very few exceptions, which is a predatory relationship between exploiting company/investors, more often than not, involving a “Faustian pact” with kleptocratic elites who view their country’s resources as their own personal cash-cow?

Half of what we do is to investigate. We look for the facts. We want credible evidence that clarifies what is happening, who is doing what, and how they are doing it. The other half is seeking change – and that can often end up in the long-term grind of seeking new international mechanisms that bring change in behaviour. We deploy the strength of our evidence to help shape the outcome. James Stewart mentions a number of these, including the Kimberley process on conflict diamonds. I won’t go into that here, but I would mention another, the Extractive Industry Transparency Initiative, or EITI, where civil society in theory is empowered to hold governments and companies to account for the payments received and paid.

In seeking to answer my development question, I think the following analogy helps: Imagine in front of you, a bathtub, full of milky water, due to bath salts. You cannot see the bottom, but the water is leaking away. This is because the tub has various holes in the bottom, of differing sizes, and in multiple locations. Your task is to find the location of the holes, work out how large they are and their shape, and then fashion a plug to stem the flow. EITI, which remains a work in progress, should eventually become one of those plugs.

Over time, my attitude to the corporate role in these processes has hardened, but it has been because of the behaviour of the companies. To illustrate this point, let me focus on corruption in the oil sector. Thinking back to the late 1990’s and early 2000’s, and to the question asked of oil companies: whether they should disclose the payments they make for extraction in countries like Angola? At that time, around 90% of Angolan state income was generated from oil, and tens of billions of dollars were being (and continue to be) siphoned off by the elite. I remember the response: “What is the business interest?” I found it unfathomable how anyone, given the situation of utter deprivation that prevailed in Angola at the time, could ask such a question. That is unless one takes into account the thesis of Joel Bakan in his extraordinary documentary/book “The Corporation” – that the predominant corporate model behaves like a psychopath! I don’t mean as we often think of psychopaths as deliberate and unthinking killers, more that the corporate interest always comes first, thus outright criminal behaviour, or behaviour that by any normal ethical standards should be criminalised, can become acceptable – the cost-benefit analysis being the extent of thinking about whether to proceed!

For me, this demonstrates the limits of Corporate Social Responsibility. For sure, there have been some major improvements in corporate behaviour, thanks to some incredible work by key CSR specialists within and outside companies – and this should continue. But they do not go anywhere near far enough. In my experience, the limits of CSR are delineated by the boundary that separates corporate interests from public interests – where they are aligned, progress can be made, but where not, the corporate interest always comes first. Our experience from over 17 years of campaigning to obtain a global standard of disclosure of project-level payments made by extractive companies strongly supports this thesis. Within months of launching the PWYP campaign in 2002, we had won the moral argument as to whether extractive companies should disclose such payments. But, with some notable company exceptions, it has taken what I would describe as trench warfare ever since, with us and our amazing PWYP colleagues, fighting the companies for every incremental improvement.

Why do companies that now profess their support for transparency behave in this way? In my opinion, this is because in many natural resource-rich, but desperately poor countries, access to concessions often requires illicit payments – often a situation created by the companies. Thus disclosure, could either lead to companies falling foul of anti-corruption legislation, or at least major embarrassment. This is precisely why we are seeking mandatory disclosure laws so that companies cannot make such payments without being exposed. Conversely, rather than helping to make a global standard, thereby helping themselves to avoid this situation, many companies have decided they want to maintain the status quo, and are expending considerable effort to undermine incoming disclosure laws, such as Amendment 1504 of the Dodd-Frank Act and the transposition in Europe of the Accounting and Transparency Directives, which require project-level payment disclosure.

So back to my bathtub – we need help. We’ve found many of the holes, and we are shaping several of the plugs – and we will continue to do so. But there are several we simply cannot find, and perhaps we do not even appreciate their existence. Here I am particularly thinking of legal remedies that can be used to bring cases, or at least imply that possibility, to impact decision-making at the board room. People often think of corruption as an exercise of payments with brown envelopes to get what you want. But in our experience, it is much more pervasive and of a scale that frequently bleeds countries dry – driving conflict, acting as a recruiting sergeant for disenfranchised youth. Denial of healthcare, education or frankly any prospect of a future breeds violence – and whilst it often might not be possible to link corrupt corporations and their officers with pulling the trigger, we know of many examples where they have been directly responsible for the conditions that lead to the trigger being pulled, and even bankrolled buying the gun. Of course we want to see efforts on all fronts to bring about changes in corporate behaviour, but until we see serious jail time as a possibility, and an end to what I consider ineffectual “cost of doing business” style fines, nothing will change.

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: stewart@law.ubc.ca with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.

 

JGS

A Court on the Rocks? Responding to the Rough Justice Reviews


David Bosco is Assistant Professor at American University’s School of International service and a contributing editor at Foreign Policy magazine. He is author of Rough Justice and Five to Rule Them All: The UN Security Council and the Making of the Modern World.


I am grateful for the opportunity to respond to the reviews of Rough Justice that James Stewart has so skillfully assembled. The reviewers bring to their task a daunting level of knowledge, experience and insight, and I will endeavor to respond as thoughtfully as they have commented. As I read them, the reviews tended to fall into two broad categories. Several discussed the evidence that I presented of “mutual accommodation” between major powers and the court and focused on what this says about the court’s trajectory. Others argued incisively that my focus on the relationship between the major powers and the court ignored important facets of the institution’s performance. I will address these broad critiques in turn.

Alex Whiting, Sarah Nouwen, David Tolbert, Aryeh Neier, and Judge Goldstone mostly agree with the picture of the court’s first decade that I have presented, but they differ markedly on the importance and implications of the mutual accommodation. Whiting and Nouwen are perhaps furthest apart. For Whiting, it is not surprising that the court would take into account geopolitical realities as it selects situations to investigate. While acknowledging concerns about the propriety of doing so, he notes that a prosecutor who ignores strategic realities “risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and…potentially undermining its legitimacy.” A wise prosecutor, he suggests, really has no choice but to strike a balance between pragmatism and principle. Nouwen sees the prosecutor’s choices in a much darker light. “If one considers equality before the law as an element of justice, then the current practice [of avoiding clashes with major powers] may do more harm than good.” Unless the ICC deviates from its path, her analysis suggests, the whole project may be tainted.

For all their differences, I think these commenters all acknowledge that the court’s success will depend on much more than its standing with major powers. As Tolbert argues, maintaining good relations with powerful states “is not enough for the Court to begin to fulfil its mandate and deliver on its promise.” I agree with this point; my focus on the relationship between these powers and the courts should not obscure the reality that the court’s legitimacy and, ultimately, its effectiveness are impacted by many other factors. Some of these factors can clearly come into tension. Nouwen is no doubt correct that a too-accommodating relationship with the powerful could sap the court’s reputation elsewhere. I end up more sanguine than she does, although perhaps not for encouraging reasons. I believe the international community has a fairly high tolerance for double standards in multilateral architecture. The failure of the Kenyan-led bid to incite a large-scale African withdrawal from the court suggests that states are unlikely to abandon the institution even when they are seriously dissatisfied with aspects of its performance.

The question that I ended the book with, and which these commenters have insightfully elaborated on, is where the court now stands. Is it navigating successfully through a turbulent atmosphere or is it on a dangerous course? In thinking about the complex trajectory of this fragile new court, we are not entirely without historical guidance. Tolbert and Judge Goldstone appropriately urge consideration of how other international—and even national—courts have maneuvered through similar pressures. The ICC may be a unique creation, but other judicial institutions have encountered similar dilemmas. Many of the commenters are far better equipped than I to assess the lessons of the ICTY for the ICC. But as I see it, the ICTY is a mostly encouraging precedent. As Neier points out, it too struggled for relevance in its early years and at various points appeared to be slow, inefficient, and toothless. But the tribunal has concluded with a very impressive record of convictions against individuals from all sides of the Balkans wars. The ICTY’s failure to seriously investigate charges against NATO does not undermine its record. As Goldstone points out, there were legitimate grounds for its prosecutor not to pursue any cases against the NATO countries related to the Kosovo conflict. Carla del Ponte noted that her enquiry into NATO conduct brought her to “the edge of the political universe in which the tribunal was allowed to function.” But acknowledging that reality does not imply that there were serious crimes by NATO left unprosecuted. Over time, the ICTY managed to generate substantial political support. While the relevant major powers—the leading European states and the United States—waxed and waned in their enthusiasm for the project, they ultimately exerted considerable pressure on Bosnia, Croatia, Serbia, and Kosovo to comply with its rulings and to deliver those indicted. I think the ICC would be quite pleased if it could move onto the ICTY’s trajectory.

The lessons of the International Court of Justice are more complex. As Tolbert reminds us, that court has endured up and downs since it began operating after the Second World War. But he argues that it has recovered from some earlier missteps and “now has a full docket.” This is too quick a conclusion; the ICJ is also peripheral to most major disputes and has not played the role its founders intended. Many of its contentious cases involve situations in which states have already decided that they want a dispute resolved. What’s more, very few of its cases involve major powers. Of the permanent Security Council members, only Britain accepts ICJ compulsory jurisdiction (and with a raft of caveats). France withdrew from the court’s jurisdiction after the court ruled that its nuclear testing was illegal. The United States followed suit after Nicaragua sued it in the mid-1980s. As Eric Posner has argued, the major powers have decided not to use the court proactively. China has never been involved in a contentious case before the court. Fewer and fewer international treaties provide for ICJ jurisdiction. One could then sketch a much gloomier picture of the ICJ than Tolbert does: it can be seen as an international court that dared to challenge the powerful and has, largely as a result, been relegated to the margins of world politics. I don’t contend that this is the only way of seeing the ICJ, but I believe its current position is less robust than Tolbert suggests.

Viewed darkly, then, the ICC is caught between two unpalatable options. It can continue with its pattern of marked caution (particularly as regards situation selection) and risk losing support in much of the world. Or it can throw caution to the wind and risk confrontations with powerful states that may leave the institution crippled and humiliated. Is there a viable third path? Can the court carefully but firmly move into areas outside of the major-power comfort zone? The prosecutor will soon have the opportunity to test its boundaries. As Neier points out, the mutual accommodation I described in the book is being tested in new ways. The Palestine situation is now on the prosecutor’s plate, and she will soon face the very difficult choice of whether to open a full investigation there. Meanwhile, there are signs that the prosecutor’s temporizing regarding the Afghanistan and Georgia situations may soon end. In the OTP’s last report on the status of preliminary examinations, it sent strong signals that it is moving toward a decision point in both situations. It is conceivable, therefore, that the prosecutor may soon have investigations open in at least two of these countries.

These investigations could put the OTP in the kind of faceoff with major powers that it has to this point avoided. There is some preliminary evidence that the ICC is holding its own in some early skirmishes with major powers. The OTP reopened a preliminary examination of British conduct in Iraq, and in so doing it forced the UK authorities to examine much more thoroughly its national accountability procedures. And as I’ve reported in Foreign Policy, the prosecutor’s office and the United States are engaged in a quiet dialogue about U.S. detention practices in Afghanistan. In both cases, it is possible to argue that the court is having an impact on the practices of powerful states. As Whiting points out, the degree of attention and concern that the court’s work generates in even major capitals suggest the court’s relevance, not obscurity. If the ICC is encouraging more thorough accountability in even powerful governments, that would be a notable achievement, and a boost for the vision of “positive complementarity.”

But encouraging national accountability won’t always be the endgame. And the looming choices that face the prosecutor bring us back to the question of whether it is wise and appropriate for the prosecutor and the court to factor geopolitics into its decisionmaking. As Whiting correctly points out, I do not directly address in the book the normative question of whether the prosecutor should act strategically. I saw the book’s purpose as analyzing and describing rather than prescribing. But I do think the court’s best interests are served by beginning to push out of the zone in which it has been operating. The prosecutor’s decision to delay an Afghanistan investigation as long as she has is particularly difficult to defend. Temporizing too long on opening a full investigation in Palestine would also invite accusations of politically-induced timidity.

Kamari Maxine Clarke and James Stewart are less interested in the ICC’s dilemma of managing relations with powerful states than in what is missing from my account of the court. Both see deeper realities mostly untouched by the narrative in Rough Justice. For Clarke, the specter of neocolonialism hangs over the court. She points out that many developing states joined the court in circumstances that, if not coercive, at least limited their options. Clarke is no doubt correct that the decisions of what to criminalize involves political and ethical choices, and I did not mean to suggest otherwise. She gently chides me for not addressing more directly the backlash in parts of Africa against the court. In part, this criticism dovetails with Nouwen’s point that in cultivating relations with major powers (and, above all, the United States), the court may itself serve to reinforce existing power disparities. In part, this criticism is fair. I certainly could have spent more time addressing the consequences of the mutual accommodation process I describe. But both in my descriptions of the Rome Conference dynamics and the Kampala debates on aggression, I do highlight the tension between those who saw the court in large part as a restraint on the powerful and those who envisioned it mainly as an instrument for dealing with weak and failing states. As I see it, my focus on understanding and documenting major-power relations with the court—with all the embedded hypocrisies—facilitates rather than impedes the perspective that Clarke offers.

Stewart’s concern about perspective missing from the book is more specific: the ICC’s failure to pursue evidence of crimes by economic players. I have no doubt that economic interests—including foreign economic interests—are important in many situations that the court has investigated. I am less certain than Stewart that these cases could be easily prosecuted but also acknowledge limits to my expertise in this area. Given the crimes provided for in the Rome Statute, it seems significantly more straightforward to prosecute a militia commander for war crimes than, say, to pursue officials from a company involved in extracting coltan from the region. The record of the ad hoc tribunals that has shaped case law on international criminal responsibility also pushes the ICC toward the responsibility of military and political leaders and away from that of economic actors. Whether or not recent caselaw on complicity will work their way into ICC charging decisions remains to be seen.

But my decision not to focus on these possible crimes ultimately did not rest on an assessment of their legal viability. My admittedly narrow focus was on the relationship between major powers and the court, and I worked largely on the basis of what court officials and those diplomats identified as key issues in the relationship. The many individuals that I interviewed for the book simply did not identify these potential economic cases as being a central part of the story. I saw no evidence, for example, that the prosecutor was pressured not to pursue cases against foreign business interests or that major powers were concerned about the court moving in this direction. In short, I do not deny that the dynamic Stewart presents is an important one. But it was a story that fell outside the scope of my project.

Commerce and Atrocity: The Elephant in the Room

David Bosco has written a wonderful book. Rough Justice reveals past events, distant and less so, that will be entirely new to even seasoned experts in international criminal justice. Where readers are familiar with the controversies he addresses, Rough Justice provides far greater detail than most were aware of. All of this information is masterfully put together in an elegant narrative, and couched within a conceptual framework that helps orient thinking about the relationship between the International Criminal Court (ICC) and Great Powers. The book will, no doubt, be read and reread by broad audiences as this ambitious experiment with supranational criminal justice unfolds over the coming decades.

At the same time, his book will likely serve as a convenient proxy for the criticisms of all those who hoped international criminal justice might be other than it is presently. In this vein, my reaction is more a complaint against the institution he describes than his treatment of it.

To my mind, there are all sorts of reasons to celebrate the arrival of the ICC, and much need to think creatively about strategies for overcoming its obvious shortcomings. I am particularly concerned by the double standards in enforcement Bosco seizes upon, and the injustice(s) these entail. Unlike other critics, I also believe that incremental acculturation is possible, whereby national courts come to take up the slack where the ICC’s power peters out. In other words, I believe that to some extent, critics of the ICC need to take Kathryn Sikkink’s “justice cascade” more seriously, and look to national systems to produce more of the distributive equality they seek. The ICC plays an important part in this cultural shift, such that its efficacy cannot be measured by referencing the impact or politics of its own trials alone. I am, for example, currently writing about the Blackwater trial that took place in Washington D.C. this past summer, in part because I intuit that, culturally speaking, this highly improbable case cannot be neatly separated from the massive rise of criminal accountability for wartime atrocity over the past two decades.

This said, the Blackwater trial does point to something highly regressive about the brand of international criminal justice on offer in the ICC’s own courtrooms. For all the reasons to celebrate the great leap forward in supranational criminal accountability over the past years, there is something strikingly backwards in all this progress too, which does not register in Bosco’s excellent book. The responsibility of businesspeople for atrocity was front and center at Nuremberg, but mysteriously, it has vanished since.

To begin, let me dispel the common misperception that companies are necessarily passive auxiliaries in bloodletting that is not of their making. In 1932, the chairman of the chemical company IG Farben allegedly paid a substantial bribe to have Hitler installed as Chancellor. Even the Nuremberg judgment itself indicates “in November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” Even before the end of the war, the Allies were adamant that if there were trials, international criminal responsibility would reach out and touch businesspeople, too: attempts at a second Nuremberg trial for just “industrialists” were only narrowly defeated. When these trials took place within zonal trials, a relatively large number of businesspeople were tried and convicted for pillaging natural resources and complicity in atrocities.

Why not now? There is a veritable flood of information about corporate implication in the very African atrocities the ICC is focused on. Security Council appointed panels of experts have documented connections between commercial actors and atrocities in modern African conflicts over which the ICC enjoys jurisdiction, NGOs like Global Witness and Human Rights Watch have mounted detailed investigations into legally comparable corporate war crimes in the very regions ICC defendants come from, Hollywood makes movies like “Blood Diamonds” and “Lord of War” to bring these realities to a wider public, all range of academics point to the perversity of the Resource Curse, the Alien Tort Statute cases against corporations nearly fall over entirely leaving quasi-total corporate impunity globally, the UN Special Representative on Business and Human Rights describes international criminal law as “[b]y far the most consequential legal development” in the field of business and human rights, but the ICC rests idle.

In fairness, Moreno-Ocampo did issue warnings about the serious possibility of these sorts of cases during his time as the ICC’s Prosecutor. In 2003, he reported that “there is general concern that the atrocities allegedly committed in [the DRC] may be fuelled by the exploitation of natural resources and the arms trade, which are enabled through the international banking system.” Later he reiterated that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” The statement then cautioned that “[t]he Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.” In a conference I organized in The Hague in 2010 together with Larissa van den Herik and the Open Society Justice Initiative, Moreno-Ocampo again expressed a desire to move these cases forward.

The failure to make good on these promises, and their absence from Bosco’s otherwise wonderful text, leaves something of an elephant in the room.

One does not need to travel all the way to Afghanistan or Georgia to observe the political double standards Bosco sees animating the ICC’s operation in action. At the same time that the ICC has indicted Omar Al-Bashir and Jean-Pierre Bemba with pillaging other types of property from Sudan and the Central African Republic, it has turned a blind eye to the mountain of evidence that foreign companies were responsible for precisely the same war crime in the same region, with far worse consequences for local populations. In private conversations with ICC prosecutors, they either claim that they wish to focus on “just the basics” or that “these sorts of cases will be exceptionally difficult to prove.” With respect to the former, I am not convinced that the “basics” preclude addressing one of the means or motivations for terrible bloodshed. As for the latter, I have to doubt the veracity of the claim, partly because Dutch prosecutors, who have brought these cases, report that acquiring actionable evidence against businesses is often easier than in regular cases involving political or military leaders.

As I point out in a separate blog with the ICTJ today, trying these sorts of trials may actually make the Prosecutor’s explanation for her unique focus on Africa more plausible. Presently, the Court justifies its singular geographical focus by citing the number of victims involved in African conflicts. In philosophy-speak, however, the underlying argument is unsound—it assumes that only Africans are responsible for atrocities in Africa. That assumption is patently false. Aside from overlooking the tremendous variety of sources I reference above, it also plays down the long history of foreign corporations plundering African resources that dates to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without question. Even leaving these two sectors to a side momentarily, what of the history of offending by private military in Africa, à la Blackwater in Iraq more recently? If the prosecutor investigates foreign businesspeople implicated in African atrocities, she could correct for the fallacious assumption in her office’s poor explanation, distance her institution from the history of colonialism, and partially diffuse the African Union’s critique of the ICC without focusing on alternative geographies.

Her response would become: “when western nationals are implicated in atrocities of this magnitude in Africa, we hold them responsible, too.”

This brings us full circle, back to national trials. By even gesturing at the possibility of these sorts of cases, Bensouda could alert states and their publics to the need to prosecute their own businesspeople in national courts, in appropriate cases. In so doing, she would be nurturing the cultural shift I point to at the outset; gently instigating a kind of “justice cascade” for a set of actors that have proven spectacularly successful in insulating themselves from modern international criminal law. These are not small peripheral issues, they are often important factors in reproducing atrocity, have powerful symbolic resonance, and therefore go to the heart of international criminal justice’s legitimacy. Thus, I would have been all the more enamored with David Bosco’s excellent book if it had also announced the elephant in the room, observed the curiously regressive character of contemporary international criminal justice on this score, and contributed to shifting public opinion regarding commerce, atrocity and accountability.

 

 

The ICC’s Credibility Depends on Much More than Just Power Politics


David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008, Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).


David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is certainly an interesting and sometimes riveting read, even to someone who knows the story well. He clearly had considerable access to the principal actors, both internal and external, in the continuing drama around the International Criminal Court (ICC) as well as the trials and tribulations of the ICC’s early years.

As a matter of analysis, I find quite useful Bosco’s conceptual framework for examining the development of the ICC’s relationships with key state powers. In particular, his description of the United States’ up-and-down (or rather down-and-up) approach to the ICC fits well with his framework of, e.g., marginalization, control, acceptance. While Bosco devotes much of the book to the signaling between the ICC (primarily the ICC Prosecutor) and the United States, he does address the Court’s relationships with the other permanent members of the UN Security Council (P5) and other key states to good effect. Thus, on its own terms, the book contributes to our understanding of the relationships – missteps, mistakes and all – and the political dynamics between the Court (primarily the Prosecutor) and key states, mainly the US, and how current accommodations were reached.

While Bosco tells this story well, his framework and approach have their limits. The support of major powers for an international body, such as the ICC, particularly one that has the capability to touch state power so directly, is important perhaps even a sine qua non to the success of such a body. Nonetheless, for the ICC to make a longer-term difference, it will need to rely on the soft power of its own credibility, legitimacy and respect. These qualities go well beyond state diplomacy or being in the good graces of the great powers. In some (if not many) ways the involvement and association with, much less the accommodation of, great powers can have a counteractive effect, as the Court may be portrayed by its enemies as a tool of the great powers or, more generally, of the West (or the western powers). Even though it is a smear, the rhetoric that the Court is acting as a cat’s paw for western powers in the case of Kenya and beyond has clearly been effective. Thus, today the challenge facing the Court is less about acceptance by the great powers and more about finding ways to strengthen and build its credibility and legitimacy. Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially – respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.

The question then is how does the Court build the credibility and legitimacy it needs to do its job more effectively and make a difference in a world full of atrocities? In this respect, there ought to be both short- and long-term strategies. With regard to the latter, there are some pertinent examples of courts and tribunals that have recovered from initial difficulties and self-inflicted wounds and examples of some that arguably have gone the other way. The International Court of Justice lost considerable credibility, and even went some years without any cases, following its mishandling (to put it politely) of the Southwest Africa/Namibia cases; but it subsequently recovered and now has a full docket. On the national level, the US Supreme Court went badly off the rails a number of times with decisions such as the Dred Scott case and Plessy v. Ferguson but re-established its reputation in the area of civil rights with Brown v. Board of Education, among other notable cases. Arguably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has gone in the opposite direction, establishing a significant amount of credibility with its handling of a number of earlier cases, including Tadić, only to run amok with its controversial and questionable decisions in Gotovina and Persić (in the latter with contradictory decisions from the ICTY Appeals Court on the same substantive issue).

If we examine these and other examples closely, it is clear that the qualities and abilities of the judges are key to establishing the credibility of a judicial institution. Indeed, one can argue that the great courts have competent and often great judges. Bosco himself alludes to the barriers to having a stronger group of judges when he notes ICC judges who came to office through apparent horse-trading, with limited (and in one case no) judicial qualifications or training; there are other cases of woefully underqualified judges being elected primarily because they come from important countries. Another area of contention that has hampered the ICC is procuring intelligence information. While these disputes are no doubt complex, they could have been addressed with a bit more judicial creativity (the ICTY’s Rule 70 approach comes to mind) in a manner that would contribute more strongly to the cause of justice.

Bosco notes a number of issues that plagued the Office of the Prosecutor. One was the propriety of using intermediaries in cases investigated in the Democratic Republic of the Congo, which led to serious questions about the collection of evidence. A second was the lack of a tracking team for locating fugitives, which had proved very useful at the ICTY. A third was not putting senior trial lawyers in charge of investigations (apparently this recently has changed), which at the ad hoc tribunals considerably strengthened investigations and indictments, an area where the ICC has struggled. These were all elements that either undermined confidence in the Office of the Prosecutor or, arguably, hampered its efficiency.

The Registry also has a number of practices and inefficiencies that are so widely recognized that the current and relatively new Registrar undertook a significant project, a ‘ReVision’ (of the Registry), the title of which speaks for itself.

One can identify other elements of ICC practices ripe for reform and change, as reflected in an extensive and probing recent report by a group of experts. There are no magic bullets, but steps can be taken to increase the credibility of the institution as whole.

So, while Bosco is right in asserting that the practice of high politics is an important and essential part of the ICC and that its leaders, particularly the Prosecutor, need to manage those relationships (particularly the signaling that goes back and forth), this is not enough for the Court to begin to fulfill its mandate and deliver on its promise. In my view, this is the key point: it is one thing to be credible to governments, but another to move beyond concerns about the P-5 and other important powers to demonstrate credibility to victims and affected communities and ultimately to build credibility among the international public.

 

The Sort of Justice the ICC Can and Cannot Deliver


Sarah Nouwen is a lecturer in law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law and fellow of Pembroke College. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013)


David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is not just fluently written and rich in original interview materials. It also makes an important argument: the relationship between the International Criminal Court (ICC) and the world’s most powerful states has been one of mutual accommodation. In Bosco’s terminology, major powers may not have ‘marginalised’ the Court (or, in the case of the United States: it has shifted away from doing so), but they do to some extent ‘control’ the Court. They do so as members of the Security Council, shaping the Court’s docket by referring situations to the Court without providing additional funding, thereby absorbing the Court’s capacity for the situations they consider warranting investigations; through signalling their preferences and dislikes in informal meetings with ICC officials; and by providing information and other forms of assistance in situations where they are happy with ICC involvement, and withholding it where they are not. The ICC, for its part, does not take direct instructions from the major powers, but has internalised their wishes in its decision-making processes, particularly when deciding whether to open an investigation. It has not challenged the ways in which the Security Council has attempted to shape the Court’s jurisdiction, even where resolutions tried to exclude people from the Court’s personal jurisdiction, and it has not opened investigations in situations where the major powers would object. As a result of this mutual accommodation, the major powers have not merely tolerated the Court but, in some specific instances, even actively supported it.

The argument is important even if not surprising. To anyone who has observed the actions of the ICC over the past ten years it seems evident that the Office of the Prosecutor (OTP) has opened investigations only where the major powers have given a ‘no-objection’ indication (eight African states), while it has taken no action beyond a ‘preliminary examination’ where the major powers have great interests (for instance, Afghanistan, Colombia, Georgia, and now, Palestine). It also comes as no surprise to scholars participating in conferences during which diplomats representing the major powers (in fact, mostly the US) signal to ICC judges on the front row of the same audience how the ICC should act—posing rhetorical questions that require no answer from the academic panel, but follow-up in practice. It comes as no surprise to attendants of the annual Assembly of States Parties, where the US, not a state party, has a bigger representation than many a state party. And it comes as no surprise to those who frequent diplomatic receptions in The Hague, where ICC officials mingle freely with European and US representatives.

The argument is important because of the way in which Bosco makes it. First, it is common for this argument to be made by observers, only to be contested by Court officials who insist that the current distribution of ICC activities around the world is the result of the pure application of law. Having extensively interviewed ICC officials and major-power representatives, Bosco, however, deploys his interview material in such a way that it is almost as if the officials themselves are making his argument for him. In the interviews, some court officials seem to express a sense of pride in their political savviness and satisfaction with their ability to placate the United States. As Bosco also points out, they often stress, in the same breath, their legal independence as well as their political usefulness. In this sense, the book reads as an inadvertent ‘coming out’ of a court that reveals its political nature to a world that had known all along.

Secondly, Bosco’s book sheds light on the various ways in which this mutual accommodation takes place and shows its nuances. For instance, he distinguishes between the Prosecutor’s great-power sensitive attitude in opening investigations and the bolder approach in selecting cases within those situations. More nuances could be explored — for example, to what extent does his argument apply only to the OTP and to what extent also to the judges? And does his entire argument apply to all nine states that he considers major powers (the P5 + Japan, Germany, Brazil and India)? Has the Court been as deferential to, for instance, Brazil as to the US?

The implications of this important argument are mostly left to the reader to surmise. Bosco seems to end on both a realistic and an optimistic note. Realistic in the sense that he concludes that the Court is more likely to reflect the double standards of existing global governance structures than to alter them. Optimistic in that he argues that other international justice initiatives (among which the post-WWII tribunals and the courts for the former Yugoslavia and Rwanda) were similarly constrained, and yet were celebrated and served as inspiration for the ICC. He concludes that it would therefore ‘not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests’.

There is reason to pause here. Were these tribunals truly celebrated, universally? One could argue that it was not their success, but their major shortcoming — selective justice — that served as inspiration for the creation of a permanent international criminal court with potentially global jurisdiction. Many non-major-power states signed up to the ICC precisely because of its promise of equality before the law: this international institution might be able to do what less powerful states could not do individually, namely hold the more powerful states, through their individuals, to account. Hence the insistence of many developing countries that the Court’s jurisdiction included the crime of aggression, a crime characteristically committed by the more powerful vis-à-vis the less powerful. The other side of Bosco’s argument that major powers control an international court is thus that smaller powers, in particular developing countries, have suffered yet another disillusionment in the emancipatory potential of international law (for other examples of international law’s boomeranging against those states taken by its promise of equality, see Sundhya Pahuja’s “Decolonising International Law”).

The implications of Bosco’s cogent argument are thus potentially much grimmer than he suggests, and many could be mentioned. But let’s focus here on two, namely one related to what the Court cannot do and one concerning what type of justice the ICC actually does. The ICC was established as a permanent international criminal court, complementary to national criminal jurisdictions, to investigate and prosecute international crimes within its jurisdiction with a view to addressing impunity. Pursuant to the complementarity principle, the Court is meant to address impunity in those instances where a case is not being, or has not been, genuinely investigated or prosecuted at the domestic level. One of the key causes of impunity at the domestic level is the pervasiveness of patronage systems, namely systems in which governments obtain loyalty from powerful actors in exchange for arms, government positions, cash, security, and indeed, impunity. In such scenarios, the state is unwilling or unable to call perpetrators to account, leading to an absence of genuine proceedings, and thus to admissibility of cases before the ICC. However, as Bosco’s argument suggests, the ICC itself is also embedded in a de facto patronage network: to some extent it accepts impunity with respect to powers on whose cooperation it depends in order to achieve accountability for others. Consequently, it is not just states but sometimes also the Court that is inactive. However, there is no ‘court of final resort’ to back up ‘the court of last resort’. Some types of impunity thus appear beyond the reach of the Rome Statute.

If justice is interpreted to mean criminal accountability, then the fact that some people are shielded from such justice does not mean that others should or would therefore go scot-free, too (see also the ICTY in Čelebići, para. 618). On that view of justice, a Court subjected to major-power political constraints seems better than no Court: every bit of accountability is welcome. However, as soon as one adopts a more holistic conception of justice, the continued selective operations of the Court are more problematic. For instance, if one considers equality before the law as an element of justice, then the current practice may do more harm than good: material inequality among states leads to de facto inequality among individuals. Moreover, by cloaking that inequality in legal procedures and arguing that all the Court does is follow the law, the Court is effectively affirming material inequality among states, and transforming it into a juridically relevant fact, thus justifying a departure from the principle of equality and legitimising and further entrenching inequality (see, more elaborately, here). That inequality does not merely dictate who ends up in the Court’s detention centre and who does not. It also determines who intervenes where in the world under the legitimising cloak of international criminal justice. Bosco shows how an initially anti-ICC US Government favoured the Court’s intervention in northern Uganda because it provided a hook for more western military involvement in Africa. And the ICC bestows such military operations with legitimacy, sometimes even explicitly. For instance, an OTP official has stated:

“We have our shopping list ready of requests for assistance from the American government … The American government first has to lead on one particular issue: the arrest of sought war criminals. … We need … the operational support of countries like the U.S., to the DRC, to Uganda, to the Central African Republic, to assist them in mounting an operation to arrest [LRA leader Joseph Kony]. They have the will – so it’s a totally legitimate operation, politically, legally – but they need this kind of assistance. And the U.S. has to be the leader.”

Thus, as Adam Branch has observed, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice’.

Another type of justice negatively affected by the practice of selective criminal accountability is that of distributive justice. As Frédéric Mégret has argued, international criminal justice distributes blame. While in a cosmopolitan vision it does so only among bare individuals, it is in practice also seen to distribute stigma among the communities to whom these individuals belong. With its current focus, the ICC distributes all the blame to Africa. In an attempt to justify this focus, Court officials have painted Africa as the heart of darkness. The OTP, for instance, has stated:

“About targeting Africa. There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40.000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.”

By conjuring this bleak image, the OTP not only explicitly justifies its Africa focus. It also implicitly exonerates the rest of the world. The fact that all the attention of the world’s only permanent International Criminal Court is usurped by Africa invariably suggests that the world’s worst crimes and worst criminals reside in and stem from that continent. Crimes committed on other continents, and the role of other actors in creating the conditions for African crimes, thus become officially invisible as a result of the ICC’s averted eye. Selective justice as a result of mutual accommodation between the ICC and major powers thus has unjust distributive effects.

In sum, David Bosco’s argument is more important than his book suggests. For its implication is not merely the obvious one that the ICC cannot overcome all power politics—it is also that in its genuine pursuit to do some justice, it can end up doing some injustice, too.