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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Targeting Arms

A Congolese soldier inspects confiscated weapons in 2005. / Lionel Healing / AFP / Getty ImagesStewart’s current project picks up from his Columbia work on corporate accountability, looking at the possibility of holding arms vendors who sell weapons to combatants responsible as accomplices in the atrocities enabled by their merchandise.

Stewart maintains that meaningful international arms regulation is unlikely. This past April, the United Nations, after nearly a decade of fighting organizations such as the National Rifle Association, finally adopted the Arms Trade Treaty, a step that Stewart views as positive but inadequate.

“I’ve always felt we shouldn’t be too sanguine about the value of a treaty,” he says. “Generally, treaties are important, but it’s difficult for me to imagine that states would actually agree to have any type of independent scrutiny over their weapons transfers. And even if they did, it’s difficult to imagine that we’re ever going to hold people individually accountable for those types of transfers. You already have a network of courts able to do that work, and they have real teeth in ways that initiatives like the Arms Trade Treaty will probably not.”

Which is why Stewart believes the best way to curb unfettered arms trade is through national courts rather than waiting for global cooperation. Following World War II, national courts held corporate representatives accountable for a range of war crimes, as they did with the German businessman who pillaged one hundred million tons of ore from France, the director of the Dresden Bank who mediated the transfer of Jewish property to German hands, and the business partners who sold the Nazis large quantities of Zyklon B, the poison chemical used in the gas chambers.

In the last case, the United Nations War Crimes Commission described the transaction as “a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of state and other public authorities, but to anybody who is in a position to assist in their violation.”

Rwandans walk past bodies at a refugee camp in Zaire (now the Democratic Republic of the Congo), 1994. / Jon Jones / Corbis“Crimes against international law,” the Nuremberg Tribunal ultimately concluded, “are committed by men, not by abstract entities.” National courts are now rediscovering the precedent set by these cases, using them as an alternative to ineffectual international law. In 2000, the Rwandan director of a tea factory was convicted of crimes against humanity for failing to restrain or punish the genocidal acts of his employees. In the Netherlands in 2007, a Dutch businessman received seventeen years in prison for selling chemicals to Iraq that were turned into mustard gas to be used on the Kurds.

“This is very bitter medicine to swallow,” says Stewart, “and states hate prosecuting their own corporate nationals. But it started happening in part because of the pressure that the International Criminal Court creates, since its jurisdiction is based on the idea that the national system didn’t prosecute these people. What I’m most interested in is states prosecuting their own corporate nationals for these sorts of crimes. There’s a much stronger sense of legitimacy in that process.”

But Stewart is not out to shut down the weapons and extractive industries. He does want them to be more vigilant in making sure their commerce doesn’t support atrocities.

“If what I was saying was something like, ‘You can’t sell weapons to Africans,’ then my project would be ridiculous,” Stewart says. “Africans have a right to weapons, provided they don’t use those weapons to commit international crimes. You have to do some pretty bad things to be guilty of a war crime with weapons. The message really is, you have to comply with the laws of war. You can sell weapons to people who comply with the laws of war.”

The Rising Tide

The credibility of Stewart’s approach is reflected in the surge of attention he has received. Over the past few years, he’s won the Cassese Prize for International Criminal Law Studies; Canada’s Aurora Prize, awarded to top emerging scholars; and an Open Society Initiative fellowship.

“Stewart is a consummate scholar unafraid to bring his conscience into his work,” says Peter Rosenblum, a professor at Bard College and a former human-rights-law professor at Columbia, where he was on Stewart’s JSD committee. “He’s the hedgehog of pillage — he knows everything about it. The idea of prosecuting corporations had been there from the beginning, but we stopped looking at those who were prospering. Stewart connected the dots between pillage and the idea of international accountability.”

Stewart acknowledges the powerful forces in his way, and, as Rosenblum confirms, they’re not just big businesses.

“It always takes a special will from a government to pursue these cases,” Rosenblum says, “and we’re not seeing a lot of that.”

But Stewart believes there is no turning back.

“If you look at the ways in which societies have developed and the fights that have been fought — women’s rights, racial equality, sexual orientation — I think this is the next one,” he says. “I don’t think of it as a battle. I think of it as a tide. I think it’s inevitable.”

Chris Cannon ’00GS is an American writer and former Marine Corps sergeant living in Vancouver, BC. His writing has appeared in Rolling Stone, Men’s Journal, and Billboard.

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