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.