“Corporate War Criminals and the
International Criminal Court: Blood and
Profits in the Democratic Republic of Congo”
Julia Graff
explores the possible avenues the International Criminal Court (ICC) can take
in holding corporations and their officers and managers liable for acts of
human rights violations transpiring in foreign nations within the corporation’s
daily operations. Some companies have instilled greater mechanisms to monitor
perpetrators of these crimes of humanity within their dealings however some
corporations have purposely chosen to undertake business transactions within
countries such as the Democratic Republic of Congo whose judicial powers are
weak and unable to prosecute corporate criminal actors.
The
International Criminal Court has jurisdiction over genocides, war crimes and
crimes against humanity which have been committed after July 2002. The Office
of the Prosecutor (OTP) can receive information of allegations from the United Nations
Security Council, and other external institutions but must act within its own
force to both investigate and punish criminal actors. Political and military
leaders as well as heads of state can be prosecuted within the jurisdiction of
the ICC, however corporations cannot. IT is recognized that the inclusion of
corporate entities under the realm of the ICC could advance victim compensation
and restoration, however also noted are the difficulties in indicting a
corporation for criminal misconduct. The court is limited to prosecuting
“natural persons” thereby allowing corporate managers, officers and employees to
be indicted rather than a corporate entity. The OTP has its sight on the DRC,
specifically the excavating industry within the Ituri region, widely known for massacres,
mass rapes and forcible labour practices directly and indirectly correlated to
the lucrative excavating industry.
By the year 2002, it has been reported that 85
corporations involved in the mining industry in the DRC breached the guidelines
outlined in the OECD which was mentioned in the previous article. Those monopolizing
the mining industry in the Ituri region of the DRC are a network of political
and military leaders as well as businessmen who exploit the regions resources
(which are actually publicly owned assets). The public revenue gets transferred
into private capital “by way of secret contracts to joint ventures controlled by
private companies, amounting to a multi-billion dollar corporate theft of the
DRC’s public assets,” (24). The Rwandan Patriotic Army (RPA) is the national
military of Rwanda and it commands most of the coltan mining industry in Ituri
and does not have to pay any taxes on minerals extracted in this region.
Furthermore, it is noted that the RPA exercises forced labour practices
including prisoners taken from Rwanda who then work as slaves in DRC. Additional
human rights abuses include:
subjecting
local populations, including children, to forced labor in the extraction of natural resources;
the torture, rape, and murder of thousands of civilians during military operations to
secure mineral-rich land; and the destruction of agricultural infrastructure to
force peasant farmers
to participate in extractive work, resulting in reduced food supplies and
slave-like conditions
in the coltan mines (25).
The pronounced association
between transnational corporations, the militant elite of Ituri and the abuses
inherent to the extraction industry in DRC contrives corporations’ aiding and
abetting abundant human rights violations. This notion of complicity should
reinforce the requirement of a corporation’s function of accountability in
globalized business ventures especially in regions where corruption is rampant
and criminal acts transpire with impunity.
As
with most corporate transgressions, complex matters need to be assessed in
order to properly prosecute the offenders. The issue of liability is essential
in determining who should be deemed legally responsible for the offence in
question. The ICC recognizes the concealed element of corporate crime in areas
like the DRC. Corporate actors tend to remain behind the scenes in
transactions, for example: “issuing secret orders, turning a blind eye to ‘efficient’
business practices or supplying the means to commit the crime,” (25). Because
of this, investigations into the acts of corporate criminals do not require the
element of direct participation; to manage prosecuting corporate actors the OTP
admits an “intermediary participation” basis for indictment. The first illustration
of this type of participation is the idea of “command” or “superior responsibility”
which finds individuals who operate as a commander of subordinates. If the
commander does not adequately oversee their subordinates’ conduct, they could
be held accountable for misdemeanours committed by the subordinate. Proof that
the subordinate who committed the offense is actually employed by the commander
is required. Influence on others outside the commander’s oversight is not
included in the liability of the commander. Furthermore, liability can be formed
through “accomplice liability”, where the individual would have acted knowingly
in aiding and abetting (including providing the means for commission, i.e.
funding) a crime.
These methods of
determining liability may alleviate some difficulties in prosecuting
transnational corporations, however limitations remain in view. As mentioned
before, the OTP has to act on its own initiative, occasionally being incapable of
penetrating the criminal realm of coltan mining. Furthermore, investigating and
reprimanding corporate malfeasance in these areas are based on complicity with
findings and recommendations; mere condemnation from the ICC may not be
completely coercive and effective in eliminating corporate misconduct in areas
like the DRC. Additionally, those involved may deny cooperation with the OTP on
political or economic grounds. From a more optimistic perspective, at least the
ICC can address and bring to light issues of corporate harm within the DRC,
creating recognition within transnational corporations that their illicit activities
may have repercussions even in states with weak judicial systems. If some
corporations get pinned by the ICC, perhaps a mechanism of deterrence may emanate,
motivating other corporations to ensure adherence to the Universal Declaration
of Human Rights and the OECD within their
business ventures in nations like the DRC.
Works
Cited:
Graff, Julia.
"Corporate War Criminals and the International Criminal Court: Blood and
Profits in the Democratic Republic of Congo." Human Rights Brief vol.11, no. 2 (2004): 23-26.
No comments:
Post a Comment