By Charles Ochen Okwir

17^th Dec 2012:

On October 17, 2012, the UN Panel of Experts accused Uganda and Rwanda (for the second time) of supporting Congo’s M23 rebel movement led by Gen. Bosco Ntaganda – a warlord indicted by the ICC for war crimes and crimes against humanity.

That is neither new nor particularly shocking.  Powerful nations like the U.S. are often involved in most conflicts around the world.  Indeed, in the words of “Jim” – a U.S. mercenary (on a secret mission in Burundi) quoted in Ben Rawlence’s book Radio Congo, “…the United States is Never Not involved” – so that is settled.

However, what is most shocking is the world’s failure to pay similar attention to the activities of the countless private corporations that buy minerals and or mining rights from warlords like Bosco Ntaganda.

Corporate Indictment

In 2001, the United Nations Security Council set up a probe team to assess the extent to which illegal exploitation of natural resources from DRC contributed to the country’s vicious cycle of war and violence – violence which, according to some estimates, has claimed the lives of 4.2 million civilians since the outbreak of war in 1994.

In its report, the UN team found that nearly 84 private corporations had illegally exported minerals from the DRC.  There is also no shortage of companies that have been publicly named for selling arms to brutal regimes in flagrant violation of arms embargoes.

The significance of this cannot be overstated.  According to James Stewart, a Global Hauser Fellow at NYU Law School who has investigated this subject, “…illegal exploitation of natural resources has surpassed superpower sponsorship as one of the most prominent means of conflict financing since the end of the Cold War.”

What Stewart is essentially saying is that more than anything else, it’s the money that warlords (like Gen. Bosco Ntaganda) get from selling minerals and mining rights to corporations that enables them to buy the weapons they use to sustain their wars and, in some cases, their campaigns of violence, brutality and murder against innocent civilians.

The question then must be asked: Are such corporations any less complicit in the perpetuation of war crimes than individual warlords like Gen. Bosco Ntaganda and the states (like Uganda and Rwanda) that allegedly back him?

Or are they let off the hook simply because they are, in more ways than one, massively more powerful than the semi-failed states like Uganda and Rwanda that are easily picked upon?  If the latter is the case, then we must ask: isn’t corporate power defeating the most fundamental essence of justice – that of equality before the law?

State of the Law

The crime of Corporate Manslaughter is now well established in most civilised nations of the world.  One would have thought therefore that the philosophy of law would have dictated (by now) that analogous provisions for “Corporate War Crimes” against complicit corporations shouldn’t be beyond the realm of legal construction.  But it sadly is.

In an interview with Think Africa Press, top British Barrister Rodney Dixon said the concept of ‘corporate manslaughter’ does not exist under international criminal law.  He however warned that the modes of criminal responsibility are not restricted to the commission of crimes by only soldiers or those bearing arms.

“…Civilians may also be held responsible if they contribute to the commission of international crimes by a group acting with a “common purpose”, Rodney said.  The other alternative, Rodney added, would be if civilians “aid and abet” the commission of crime, or if they are found to have had “effective control” over the perpetrators of war crimes.

These possibilities, Rodney says, “…should send a strong warning to civilians in corporate structures that if by their actions they contribute to and or assist in the perpetration of crime by others, then they may be held responsible if the legal and jurisdictional requirements are satisfied.”

And he is right.  For a start, the crime of unlawful pillage of the natural resources of a foreign state already exists under international law.  This means that any person who steals natural resources by purchasing them from warlords who have no legal right to sell them can be held responsible for ‘unlawful pillage’.

Here is the other crucial thing: the word “person” in the above context of liability for ‘unlawful pillage’ also includes corporations – because in law, a corporation is a “legal person”.  The problem however lies in establishing a link to the suspect corporations because many of them operate complex supply chains that detach them from the chain of causation.

The Moral Dilema

It seems incredible that in this age of increased universality in humanity’s core values, the world still doesn’t have international criminal law provisions that prescribe stiff penalties for corporations that recklessly engage in commercial activities with individuals and state actors that commit war crimes and crimes against humanity.

The moral case for introducing such provisions under international criminal law was very well stated in a series of questions posed (in an article) by Ugandan Barrister David Mpanga.  “…So who makes the arms with which the Congolese are being killed?  Do they have an idea where the arms that they supply end up?  Do they care?” Mpanga asked.

“…Can they be held responsible for what their products are doing to innocent people?  Who consumes the goods that are made from the natural resources that are extracted from the eastern DRC?  Do they know how the resources are extracted and how supplies are secured?” Mpanga added.

The answers to these questions, Mpanga says, “…will help us distinguish the butcher(s) from the skinner(s).” – the inherent insinuation being that the greatest responsibility for some the worst war crimes committed in Congo may actually lie with powerful corporate actors outside Congo’s borders.  But will such companies sit back and watch as the noose tightens around their necks?

Corporate Fight-back

In the United States, the Chamber of Commerce and the National Association of Manufacturers have already petitioned the U.S. Court of Appeal to modify or even scrap what they call “burdensome” Securities and Exchange Commission (SEC) rules.

The SEC rules under the 2010 Dodd-Frank financial reform law requires corporations to publicly report whether their products contain conflict minerals from the DRC or a neighbouring country, and if so, track the source and chain of custody of the minerals.

Proponents of the “conflict minerals” rules maintain that they are the best way to ensure that companies’ supply chains aren’t enriching armed groups responsible for violence in the region.

The opponents on the other hand argue that “…the final conflict mineral rule imposes an unworkable, overly broad and burdensome system that will undermine jobs and growth and may not achieve Congress’s overall objectives.”

The desire to excite conservative American sentiments is unmistakable there.   And, as if on cue, Republican politicians have already expressed concerns about the rules – arguing that they heap onerous and costly requirements on a range of industries while doing little to actually alleviate suffering in the DRC!

But is it really the DRC that Republicans are worried about?  How many jobs, for example, can realistically be attributed to the success of U.S mineral extraction companies operating in Congo?

Or could it be that the Republicans are actually more worried about the impact the SEC rules will have on the operations of big defence contractors whose products and services are crucial for U.S. military operations in Iraq and Afghanistan?  Clearly, the jury is out on that!

Way Forward

In his interview with Corporate Crime Reporter, Stewart pointed out that after World War II, nearly “…all countries implemented international crimes into their own national criminal systems.”

The best example, he said, was the War Crimes Act in the United States that gives federal courts jurisdiction over war crimes.  In the United Kingdom too, British domiciled companies operating abroad can be prosecuted in the UK under The Bribery Act which gives British courts extra-territorial jurisdiction.

In fact, under the same law, even non-UK companies can be held liable for failure to prevent bribery if they happen to do business in the United Kingdom.  All these possibilities suggest that domestic prosecution of corporations for crimes committed abroad may be the way to go.  END: Login to www.ugandacorrespondent.com every Monday to read our top stories mid-week for our updates

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