CHAMPAIGN, Ill. — A novel approach to prosecuting the crime of pillage could lead to greater accountability for war criminals who participate in large-scale pillage operations, such as controlling a mine whose minerals were used to help fund the conflict, says a paper from a University of Illinois expert in international criminal law.
Prosecutors and legal scholars have previously struggled to develop the necessary legal tools to adequately prosecute those responsible for the exploitation of civilians and natural resources in conflict zones. But according to a new theory of the crime of pillage developed by Patrick Keenan, a professor of law at Illinois, war criminals could face prosecution when they “create a process or system to exploit people or resources connected to the overall conflict.”
“The illicit exploitation of civilians and natural resources has been associated with some of the worst violence in the past half-century, especially in the Democratic Republic of Congo,” Keenan said. “But under the new theory that I propose in the paper, individuals could face prosecution for their participation in large-scale pillage operations, such as controlling a mine or using the people working there as slave labor, as well as other kinds of human-rights violations.”
According to Keenan, the two dominant theories of the crime of pillage – the episodic theory and the corporate theory – have proved inadequate in prosecuting the exploitation of civilians and natural resources, often called “conflict minerals,” that have been associated with some of the worst atrocities of the past half-century.
“The episodic theory is of limited utility when applied to resource wars in which combatants struggle for control over access to exploitable resources, because it has been applied only to discrete, relatively small episodes of theft – livestock, money and other personal goods,” he said. “In these conflicts, there was substantial evidence that a principal reason for the conflict and an important source of revenue to fund the various fighting forces were the resources themselves.”
In Congo, for example, factions have fought for control of mines from which they obtain gold, titanium and other valuable minerals that are sold and smelted many times over – and then sold again for use in the components of consumer electronics such as mobile phones or tablet computers, Keenan said.
In response, scholars and advocates created a corporate theory of the crime of pillage.
“The corporate theory calls for the prosecution of individuals or entities who purchase or use resources that are derived from conflict areas or extracted under the direction of those involved in the war,” Keenan said.
The problem with the two dominant theories is that the episodic theory of prosecution is too narrow to address the kinds of harms that occur in modern resource wars, while the corporate theory is overly broad, “stretching already-thin legal theories beyond their breaking point,” according to the paper.
“What has been missing is a theory that fits the facts more closely while, at the same time, also fits with existing law,” Keenan said. “The third way, the systematic theory that I propose in the paper, is consistent with the law underpinning the traditional episodic theory, while also accomplishing some of the goals of the corporate theory.”
Using the International Criminal Court’s ongoing prosecution of Congolese warlord Bosco Ntaganda as a case study, the paper shows that the systematic theory of pillage would allow prosecutors greater latitude to take legal action against alleged war criminals.
“The International Criminal Court has been prosecuting war criminals from Congo for widespread human rights violations. But they haven’t really brought the two things – the human rights violations and the resource conflicts – together,” Keenan said. “It’s been wholly appropriate for the court to focus on child soldiers and other really horrible crimes. But the systematic exploitation of natural resources is also terrible for a country like Congo, because there’s only a finite amount of those minerals in the ground. That’s something that also ought to be the focus of the International Criminal Court.”
The exploitation of natural resources robs Congo of “the means to transform itself into a wealthier, more developed country,” Keenan said.
“It’s as if someone steals money from your bank account, uses the money to buy a gun and then shoots you with it. You’re being injured twice,” he said. “Countries like Congo are being injured twice – their resources are stolen, and then they’re sold off to buy weapons that are used against their citizens. And no one gets prosecuted for it.”
The changes Keenan advocates for in the paper could happen immediately, he said.
“The law not only doesn’t prohibit this, I argue that it points in the direction that I outline in the paper,” he said. “The evidence is absolutely there. So when the prosecutors start the Ntaganda trial in July, they could do this exactly in the way I describe in the paper. They may have to amend what they filed in court, but that’s not difficult. And I think it would be better if they were to do it that way. It would be better for the victims, it would be better for the country, and it would be better for the International Criminal Court.”
It also matters because the ICC has a reparations system, Keenan notes.
“If somebody robs a bank in the U.S., not only are they prosecuted, but the government also tries to recover the stolen money,” he said. “The same thing is true for the ICC: If they successfully prosecute someone for a crime, they can also recover resources from that person to go toward restitution for the victims of the crime.”
But if they never prosecute the crime, no reparations can be given to the victims, “whose harms are essentially ignored,” Keenan said.
“So the fact that you can get reparations at the ICC means you have to prosecute,” he said. “If you don’t prosecute, not only do those victims not get justice, it also means they get no reparations. It means the international community can’t trace the money and get it back from the companies that benefited from it. It means those victims who were exploited at the mines don’t receive any of the reparations money. There’s a lot of harm for both the victims and the country when prosecutors don’t use the more appropriate theory.”
The paper was published in the Chicago Journal of International Law.