James Stewart on Prosecuting Corporations for War Crimes
Corporate Crime Reporter, October 17, 2012
Why have there been no criminal prosecutions of corporations for international war crimes? Crimes like pillage – the theft of natural resources during wartime? That’s a question that James Stewart wants answered.
He’s a Global Hauser Fellow at NYU Law School. And he has authored a recent paper on the subject – A Pragmatic Critique of Corporate Criminal Theory: Atrocity, Commerce and Accountability.
Stewart was moved by the atrocities in the Democratic Republic of the Congo, where he spent time over the past decade or so.
“It produces this kind of vicious triangle. At the top of the triangle is the continuing of violence. And at the two peripheries is illegal exploitation of natural resources and illicit weapons flows. And it strikes me that we focus too much on the apex of the triangle. We focus far too much on mopping up – murder, rape, torture – after everything has run its course. It’s better to intervene and focus on the bottom two peripheries of the triangle, for which a great number of international corporate actors are engaged and responsible.”
“There is no shortage of companies that have been named for having violated arms embargoes by selling weapons to notoriously brutal regimes all over the world. There is no end of allegations against companies for having purchased natural resources from warlords. They certainly didn’t have title to the natural resources that they sold to companies. And in a way, these practices have been ongoing for a very long time, in part because there has never been any accountability whatsoever.”
Which international prosecutor would be inclined to bring such a case?
“My greatest interest is not in international institutions at all,” Stewart says. “It is in domestic courts prosecuting their own corporations. That is so much more legitimate. Things are structured in such a way that states are starting to prosecute their own nationals for international crimes, which is a massive shift. And prosecuting corporations is the next stage in that shift.”
What is an example of a state prosecuting its own nationals for one of these types of crimes?
“Britain recently prosecuted its own soldiers for war crimes in Iraq,” Stewart says. “The Netherlands prosecuted two of its business people for international crimes through selling weapons. There are no examples of corporate criminal liability on this level just yet, but I sense that is the next inevitable stage.”
If you were a prosecutor and had the ability to prosecute these cases, would you have in mind a hierarchy of cases to investigate?
“The problem globally is endemic. It’s not difficult to find cases.”
“And sometime around the year 2000, Australia stopped producing coltan for a period of time. And it spiked the price of coltan globally tenfold or thereabouts. And this produced a tremendous effect on atrocities in the Democratic Republic of the Congo as warring parties vied for control over resource rich areas. They would steal the resources. Ownership meant nothing. They would forcibly take the resources. They will sell them to willing foreign companies that would purchase them. And they use the proceeds to buy weapons to continue mass violations of human rights. This is part of the dynamic that has been taking place over time.”
We put it to Stewart that the corporate crime establishment in the United States, the Justice Department and the major defense firms – would fear the slippery slope. You are talking about Darfur, Sudan, Congo. What they are worried about is Iraq, Afghanistan, Israel/Palestine.
If the Iraq war was illegal and unconstitutional, can corporations be held liable for selling weapons to the illegal aggressor? Can corporations be held liable for funding an illegal occupation? You would then be moving from a project they would be interested in – big corporations being the victims of pillage – to a project they would not be interested in – big corporations funding illegal aggression.
“That just comes back to the point of the power of corporations,” Stewart says. “There is no way of getting around that problem. Corporations are especially powerful and they have ties to powerful governments. But I don’t think that defeats the project. There are opportunities for accountability which are new. And it’s not going to be a perfect system because politics will always interfere at some level. But it is going to be a system that brings greater teeth to the desire to deal with extractive industries involved with blood diamonds or weapons being sold to notoriously brutal regimes.”
What about making the case for criminal prosecution of the five major defense contractors in the United States for complicity in illegal U.S. wars?
Stewart says that after World War II,
The United States currently does not criminalize wars of aggression?
“The United States does not. Very few countries do.”
Were the Nuremberg prosecutions of corporations for complicity in wars of aggression?
“After the Second World War, there were no companies prosecuted,” Stewart says. “But business people were prosecuted, some for complicity in wars of aggression. But the vast majority were prosecuted for pillaging natural resources.”
“That was one set of cases. Another set of cases had to do with the business people who sold the chemical Zyklon B to Auschwitz. They were prosecuted for complicity in murder because they provided the means for the extermination. That’s a very extreme example, but it’s the very same legal methodology which has broad implications for weapon vendors selling all sorts of weapons to brutal regimes.”
[For the complete q/a transcript of the Interview with James Stewart, see 26 Corporate Crime Reporter 40(12), October 15, 2012, print edition only.]
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