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?