Written by Garima Tiwari
Greed more than grievances inspires many of today’s conflicts.[i]
@Eric Feferberg/AFP/Getty Images
This post would give a brief insight into one of the broadest and most frequently cited provision in relation to illegal exploitation of natural resources in both international as well as non-international armed conflicts- War Crime of Pillage.
Since the end of the Cold War, the illegal exploitation of natural resources has become a prevalent means of financing some of the most brutal hostilities and conflicts. In countries including Angola, the Democratic Republic of the Congo, East Timor, Iraq, Liberia, Myanmar, and Sierra Leone, the illicit trade in natural resources has created lucrative incentives for violence. It seems true, that a resource rich country might not be taking the advantage of what it has, but the resources might turn to its disadvantage. The problem of resource curve is evident.
The war crime of pillage, is included in Article 8(2)(b)(xvi) of the Rome Statute for the situation of international armed conflict and in Article 8(2)(e)(v) for the situation of non-international armed conflict. Pillage as included in the Rome Statue is general in scope covering all kinds of property –without any affiliation of the owner of the property to a party to an armed conflict. But the catch situation here is that the property should be taken for ‘personal’ or ‘private’ use, leading to an open space for justifying pillage when done to fund a conflict. The provision addresses both combatants and civilians.[ii] It is also worth noting that the war crime of pillage covers both individual acts committed without the consent of the military authorities and organized forms of pillage.[iii]
It was the Nuremberg Trials which opened the doors to a broader and liberal understanding of pillage, relevant for the international criminal law, to include a systematic plunder and exploitation of the resources of a country by occupying power. This went beyond the traditional view of theft by war soldiers or civilians.[iv]
The Special Court for Sierra Leone specifically dealt with a so called resource-driven conflict.[v] Yet, charges included in the CDF, AFRC and RUF indictments did not regard illegal resource extraction but charged merely in relation to burning of houses and property. It is no wonder the charges were dismissed. In the RUF case, the Trial Chamber held that, since the indictment did not allege that the pillage of civilian property included the diamond resources of Sierra Leone, it could not consider the criminality of such acts in Kono District .[vi] As a consequence, the famous Taylor indictment did not even refer to the diamonds![vii]
International Criminal Court (ICC) included pillage in indictments against Katanga en Mathieu Ngudjolo Chui (DRC), Jean-Pierre Bemba (CAR), Joseph Kony (Uganda) and all indictments pertaining to the situation in Darfur.[viii] Most of the charges deal with looting village and camps but nowhere is the accused charged with crimes directly related to the exploitation activities.
ICC might be adopting the traditional stand here, but it is understandable given the definition of pillage which makes it outside the scope of ICC to address those actors specifically government actors who exploit natural resources to fund armed conflicts. Some suggest charging with corruption in such situations might be more suitable.[ix]
Thus, the issue of pillage grasps for broader interpretation and application. We need to wait and see , how ICC develops the crime of pillage to deal with the very apparent problem of ‘resource curse’ .
[ii] O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Baden-Baden: Nomos, 2nd ed., 2008, margin no. 170, p. 409.
[iii] J. Pictet and O.M. Uhler, The Geneva Conventions of 12 August 1949: commentary, Part 4 on Geneva Convention relative to the protection of civilian persons in time of war, Geneva: International Committee of the Red Cross (1958), Art. 33
[iv] Trial of the Major War Criminals Before the International Military Tribunal, Official Documents, Volume I, Nuremberg (1947), p. 239.
[v] D. Keen, Conflict and collusion in Sierra Leone, Palgrave, 2005
[vi] Prosecutor vs. Sesay, Kallon and Gbao (RUF Case), Trial Chamber Judgement of 25 February 2009,Case No. SCSL-04-15-T, para. 1339.
[vii] C. Rose, Troubled indictments at the Special Court for Sierra Leone: the pleading of joint criminal enterprise and sex-based crimes, 7 Journal of International Criminal Justice 2: 353-372 (2009)
[viii] ICC, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al- Rahman Case No. ICC-02/05-01/07
[ix] Van den Herik, Larissa and Dam, Daniëlla, Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation During Armed Conflict (January, 22 2012). Criminal Law Forum, Vol. 22, No. 3, 2011