The Pillage Option

How do you stop genocide before it starts? Legal theorist, James Stewart, has revived a forgotten strategy — and The Hague is listening.

by Chris Cannon ’00GS Published Fall 2013
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In “Corporate War Crimes,” Stewart explains that plunder and pillage are “legally synonymous” and often interchangeable. Both describe theft during wartime. The International Criminal Tribunal for the former Yugoslavia defined plunder as embracing “all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as ‘pillage.’”

In 2004, Stewart, working as a legal adviser for the International Committee of the Red Cross (ICRC), was asked to write a pamphlet on the relationship between the laws of war and businesses. When he finished, he offered to write a much broader study on corporate responsibility for pillaging natural resources. But his superiors at the ICRC, aware of the pillage cases from World War II, weren’t sure how or if they might apply to modern resource wars in Africa. “‘Using pillage to hold corporations criminally responsible for buying resources is a very avant-garde idea,’ they told me,” Stewart says. “‘We think it’s too radical. We’re not sure it works. We’re not sure the legal basis is there to make this work.’”

Stewart remembered those words when he came to Columbia in 2007. An academic at heart, he took up an associate-in-law position (a two-year teaching fellowship at Columbia Law School) and pursued his JSD (the legal equivalent of a PhD) in the area of corporate responsibility for international crimes.

“Pillage had been prosecuted as a war crime after World War II, but it had then largely fallen off the map of modern thinking about war crimes,” says Sarah Cleveland, the Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School, who advised Stewart in his writing. “Exploitation of natural resources such as oil, diamonds, gold, and ivory has been critical to supporting many of the world’s most intractable armed conflicts, and James’s work has put new tools on the table to help us confront these challenges.”

“Businesses just write off the cost of the loss on these sorts of issues and build it into the cost of the widgets that they’re selling and pass that cost on to consumers.”

In Belgium, for example, an investigation is underway over the pillage of diamonds in Sierra Leone, in which prosecutors are using a French translation of “Corporate War Crimes” to prosecute a Belgian businessman allegedly involved in the illegal diamond trade. Stewart is also pressing his case personally: in 2010, at the Peace Palace in The Hague, he addressed three hundred judges, prosecutors, members of civil society, and scholars, all of them seeking that elusive legal basis to hold corporations accountable for pillaging natural resources — no longer such a radical idea. That same year he used “Corporate War Crimes” to train prosecutors from twelve different legal systems at the International Criminal Court, and was invited back to instruct a group of European prosecutors this fall.

Back on the Radar

The concept of pillage as a war crime is enshrined in the Hague Regulations of 1907 and the Geneva Conventions of 1949. It is at the heart of Stewart’s work, because it allows for criminal liability. Civil penalties, in the rare instances when they are awarded, are a slap on the wrist to extremely profitable corporations. When Shell Oil was accused of collaborating with the Nigerian government in 1993 to execute environmentalists and tribal leaders, the company, which asserted its innocence, eventually settled for $15.5 million — a parking ticket for a business that generated $467 billion in revenue in 2012.

“Businesses just write off the cost of the loss on these sorts of issues and build it into the cost of the widgets that they’re selling and pass that cost on to consumers,” Stewart says. “So there’s a concern that civil liability isn’t really something that organizations feel terribly acutely, particularly if the entire industry is undertaking those sorts of practices.”

Meanwhile, over the thirteen years the Shell case dragged on, the company was repeatedly accused of funding armed groups to murder civilian activists, polluting the drinking water with benzene, and grossly underreporting oil spills, which it accomplished, according to a leaked US embassy cable, by planting operatives throughout the Nigerian government.

“Criminal responsibility creates different incentives,” says Stewart. “Criminal law can reach into a corporation, take individual CEOs and employees, and call them to account for their actions. It can also hold corporations themselves criminally responsible. When applied to international crimes, these possibilities change the ball game. You don’t need to prosecute every single incident to have a massive effect on the industry. You prosecute a few cases successfully, and it will send a clear message that will change the way conflicts are financed and the way weapons are transferred into conflict zones.”

Criminal liability also has the power to stigmatize a corporation, as it did with the accounting company Arthur Andersen, which all but folded after it was convicted of obstruction of justice for shredding documents during the 2001 Enron scandal. If public shaming can bring down a single company, says Stewart, imagine the impact it can have on an entire industry. He notes that after animal-rights activists targeted the fur market in the 1980s, fur sales dropped by nearly half. “It shifted the way people think about wearing furs on moral grounds almost instantaneously,” he says.

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