Thursday 12 December 2013

The International Criminal Court: Can peace really be achieved?

“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.

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