Pillage theory: a blueprint for prosecuting corporations trading in conflict resources

Pillage theory
The 'pillage theory' is a legal tool that can be used to prosecute corporations involved in the trade in resources such as timber and diamonds originating in conflict zones
Timber, diamonds, gold and oil have long been recognised as drivers of war. But companies involved in trading commodities from conflict zones are seldom prosecuted. Isn't it time they were held to account? Matilda Lee reports

According to the United Nations, at least 18 violent conflicts in the last two decades have been fuelled by the exploitation of countries' natural resources - everything from timber, diamonds, gold, minerals and oil, to land and water. In 2001, the UN General Assembly declared that the 6th November would henceforth be the ‘International Day for Preventing the Exploitation of the Environment in War and Armed Conflict'. But if the environment has historically been the ‘unpublicised victim of war', lawyers and activists are focusing their attention on a new legal tool to curb the conflict resources trade by prosecuting the corporations that are profiting from it. A report, Corporate War Crimes: Prosecuting the Pillage of Natural Resources, by Professor James Stewart, launched at a conference on the same subject in the Hague last year, essentially lays out a blueprint of jurisprudence to hold companies to account for their role in fuelling armed conflict.

Patrick Alley, of UK campaign group Global Witness that has worked for 17 years to expose armed conflict resource corruption, says that to date, efforts to hold corporations accountable have all but failed. ‘Wars from Liberia, to Sierra Leone or Angola all had a natural resource element to them and the exploitation of natural resources helped perpetuate the conflicts. Companies were knowingly doing business in these areas and trading in these resources. Unless this is dealt with, these companies essentially have impunity. They make a profit then leave the country, and the communities have the job of paying for it and picking up the pieces,' he says.

The legal basis centres on the so-called ‘pillage theory' of conflict-related theft, prohibited in international humanitarian law in the 1949 Geneva Convention. Ken Hurwitz, senior anti-corruption legal officer at the Open Society's Justice Initiative, which was involved in preparing the report and the conference says: ‘Jurisprudence is quite volatile at the moment, there are lots of cases going in different directions. The question really boils down to "If I'm buying timber from [former Liberian President] Charles Taylor, and I am therefore giving him money that he uses to arm and equip troops to commit human rights violations, do I share his intent to commit those violations, or is my intent to make money, and does that make a difference?".'

For years, Global Witness, and other civil society groups, pursued the French subsidiary of Danish timber giant DLH through the courts for buying timber from Liberian companies that supported Taylor's regime. They argued that DLH was guilty of ‘recel', the French crime of profiting from goods obtained illegally. ‘We had to try and search jurisdictions to see where a case could be brought. We ended up trying a Danish company in France, all of which is illustrative of the fact that it is not easy. It's an ongoing process and it's taken years. The bottom line is that there never was any prosecution. Now those companies are marketing themselves as super responsible, with FSC certification and the like. Yet, years ago, they were involved in this dirty trade.'

Under the 'pillage theory', there is no requirement of intent to commit the violations that the resources allow to be committed, but rather, ‘an intent to purchase commodities or other assets from somebody who you know doesn't have legal title to them and in the context of an armed conflict,' says Hurwitz. ‘Although none of these cases are simple, we think this is a somewhat more direct and logical, and evidentially easier burden to satisfy on behalf of the prosecutor.' As to why pillage theory itself was never really looked at before, Hurwitz says that in the context in which those situations initially arose, the post World War two cases were different enough from anything people were looking at contemporaneously. 'Nobody really looked but the jurisprudence wasn't really considered particularly on point to the situations human rights activist were focusing on. Then in the DRC [Democratic Republic of Congo] in particular, people were using the word pillage to refer to what was happening economically to the country but everyone was using it as a metaphor - nobody was using it as a technical legal term. Lawyers are sometimes very literal, so the thought was, well, what actually is the crime of pillage? So we looked and found this notion of receiving stolen goods as a type of pillage which seems to have common currency within the jurisprudence, certainly after the World War two period.'

Other guidelines and regulations being developing aim to prevent natural resource trafficking from happening in the first place. One of the provisions in the US Dodd-Frank regulation now being debated relates to ‘conflict minerals', and requires the company bringing materials in from the DRC to the US to show their supply chain due diligence. ‘That in itself is progress,' says Alley. ‘The EU is talking about doing the same thing. But there has been a tremendous push back from industry that could weaken the rule making around this.' The OECD has developed a series of corporate guidelines on due diligence, including in conflict zones. Civil society groups have a critical role to play in raising awareness of supply chains. ‘The whole point of due diligence is the company has to find out where their materials are coming from,' says Alley. 'Our start point is "what is it you are doing to know about your supply chain?" and the response varies. When we can indentify a company buying from conflict zones, we will write to them and engage with them to see what they will do about it.'

One concern about using ‘pillage theory' is how it would impact on communities, such as artisanal miners, who depend on the natural resources trade. ‘It is very often poor people in the battle zone who are mining,' Hurwitz says. 'Technically, if they are mining, and they have no license and they are selling to an armed group, even if at gunpoint, certainly the goal is not to hold them liable for pillage. That's something one would have to be very careful about.' While it is too early to gauge whether the ‘pillage theory' will penetrate into mainstream prosecutorial culture, Hurwitz says the report has led to discussions with a number of authorities in ‘six or so' jurisdictions and he is aware of two or three places where the theory is being pursued actively. ‘We are in an unfortunate situation with the global economy. Prosecutorial agencies are having budget cutbacks meaning there are disincentives for a prosecutor to pursue a new and risky approach to litigation taking on what are probably politically controversial and deep pocketed defendants.'

Even so, 'the UN peacekeeping missions in [Liberia and the DRC] cost of hundreds of millions,' according to Patrick Alley. 'If it had been impossible to launder those natural resources onto the market, it is hard to quantify how much but the impact would have been far less. I would argue that in a sense the international community is subsidising business operation in conflict zones.'

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