Prosecuting Pillaging May Be Key to Curbing Natural Resource Driven War

Feb 4, 2015 | Carey L. Biron
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Governments, lawyers, activists and the broader multilateral system may be missing a key opportunity in the attempt to end war and violence driven by the exploitation of natural resources, analysts suggest.

Conflicts around the world are either being fought over access to natural resources or being fuelled by proceeds from the exploitation of those resources. The Islamic State of Iraq and Syria (ISIS), for instance, was estimated to be making $1 million a day in oil sales last fall, making it one of the most cash-rich extremist groups in history. Likewise, conflict in the Democratic Republic of the Congo (DRC) has continued for years as both state and non-state actors have fought over access to the country’s lucrative minerals wealth.

In both of these instances, of course, the primary collateral impact has been on civilian populations. Yet despite both the longstanding cause and effect of natural resources exploitation – leading to and perpetuating war and violence – judicial and accountability efforts almost never focus on prosecuting high-level officials for these crimes.

Indeed, a potent tool is available for this exact use: the war crime of pillage, commonly defined as theft during war. Yet this option, despite having been agreed upon internationally more than a century ago, hasn’t actually been deployed in decades.

“It seems like almost a no-brainer, but this particular war crime has just been very underappreciated and under-investigated,” Sasha Lezhnev, an associate policy director at the Enough Project, a Washington advocacy group aimed at preventing atrocity, told MintPress News.

“I think this is something that just now is popping up on more and more people’s radar screens. From our conversations there seems to be initial interest in this idea but a lack of knowledge – several policymakers told us they just didn’t have the institutional capacity on this issue.”

Proponents say that stepping up prosecutions for natural resources “pillage” during times of war would achieve multiple interrelated but separate goals. At the most basic level, even just a few high-level prosecutions – perhaps even regardless of their outcome – could do much to end the widespread sense of impunity around these crimes. They could also remove key individuals at the center of systems set up to use civilian populations to exploit resources that are in turn used to pay for continued violence.

A new report from the Enough Project suggests that this impunity not only leads inevitably to greater resource exploitation, but also to other crimes that may more immediately violate civil and human rights.

“Pillage is largely unpunished, and impunity for some grave crimes begets impunity for others,” the report states.

“Pillage is important to prosecute because it is interwoven with crimes of violence, like murder, rape, and forced labor. Prosecuting pillage will help end impunity for the crime itself and also provide important context and evidence for more successful cases against these related atrocity crimes.”

Financial crimes

Traditionally, these more violent offenses have made up the focus of the international community’s main mechanism for prosecuting war crimes, the International Criminal Court (ICC) at The Hague, since its formation nearly a decade and a half ago.

The court is indeed empowered to prosecute for pillage. Yet today the court suffers from a similar lack of expertise on investigating natural resources exploitation that afflicts other institutions.

While the ICC did have a financial crimes unit for several years, that department has been shuttered. The Enough Project says this was due to the office’s “lack of effectiveness.” The group is now calling for the office’s re-opening as a critical first step toward strengthening pillage-related prosecution. (ICC representatives were unable to comment for this story by deadline.)

“We think it’s important that the [ICC] chief prosecutor revive the financial crimes unit. Doing so would really help the court’s mission while also contributing to cases already in the ICC’s docket,” Lezhnev said.

Lezhnev points to current ICC cases proceeding against Bosco Ntaganda, the former Congolese militant leader wanted for conscripting child soldiers, as well as the recently surrendered Lord’s Resistance Army commander Dominic Ongwen. Both could potentially be prosecuted for pillage alongside their other alleged war crimes.

“Bosco Ntaganda was documented for many years having run a ‘conflict minerals’ smuggling ring and profiting heavily from the trade in gold and other minerals,” Lezhnev said. “But it’s a question of having the right expertise to do those investigations.”

The Lord’s Resistance Army, too, has long been known to fund its operations in the Central African Republic in part through the poaching of elephants and selling that ivory onto the black market.

Of course, financial crimes are some of the most complicated of any offense to pursue and prove. This difficulty has only grown over the past decade as the international financial system has become increasingly globalized and massively more complex. While the international community is currently in the process of creating new policy and mechanisms aimed at cutting off the routing and hiding of illicit capital, as yet this effort remains incomplete.

The legal barriers to proving pillage are also onerous. Under definitions first agreed upon in the early 20th century, prosecutors would be required to prove that a defendant took specific lands without the owner’s consent, and that the defendant did so specifically knowing that a broader wartime context would facilitate this theft.

In many resource-rich developing countries, land titles and tenure issues are not only still weak but also extremely divisive. Prosecution attempts would likely be further stymied by the fact that the government often has some ownership stake over natural resources in many countries – and that those potentially accused of pillage are often members of the state military.

“From the work we do investigating these types of issues, we know it’s often not easy to find the right evidence to establish a case. Certainly when it comes to a criminal context, that burden is even higher,” Zorka Milin, a senior legal adviser with Global Witness, a watchdog group that works on issues of natural resources governance, told MintPress.

“Still, that’s not to say that it’s not important or that we should shy away from the ambition. But this is not just a matter of legal challenge – there’s also the political challenge in terms of having sufficient political will to green-light these prosecutions.”

Some precedent

The war crime of pillage has been used in limited international forums before, perhaps most famously at the Nuremberg trials in the aftermath of World War II. In that instance, as with similar subsequent examples in the context of probes regarding Rwanda and the former Yugoslavia, the allegations have focused more on the widespread theft of personal property.

More recently, the sole partial model for modern prosecutions can be found in the ICC trial of former Liberian president Charles Taylor, wanted for orchestrating crimes against humanity in Sierra Leone. While Taylor was not charged with pillage, the mining and sale of “blood diamonds” in that conflict was prominently discussed at his trial.

“Diamond-rich territories were often the battlegrounds on which the civil war was fought,” the Enough Project report notes. “Civilian residents in those territories became human shields, sex slaves, child soldiers, and casualties of the violence.” Taylor himself once said that the conflict in Sierra Leone was “a war about diamonds,” the report states.

“So far the ICC has really concentrated on crimes of violence, which is understandable – they have to prioritize their focus on international crimes somehow,” Global Witness’ Milin said. “But in some cases, particularly in these resource-driven conflicts, they really have to get to the root cause of the conflict, and it makes sense that they should look into this issue.”

This isn’t a story simply about the ICC, however. Most national judicial systems are likewise empowered to prosecute for atrocities that take place within their borders, in addition to the corruption and other legal issues that would concern national-level prosecutors. Here, too, issues of capacity are key factors – currently weak but with the potential to be strengthened, assuming broader prioritization at the national and international levels.