The laws of war, also known as international humanitarian law, have long protected property against pillage during armed conflict.
In the 1863 Lieber Code, which established the law of war for Union forces in the American Civil War, "all pillage or sacking, even after taking place by main force [... were] prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense." In the Hague Regulations of 1907, two provisions categorically stipulate that "the pillage of a town or place, even when taken by assault, is prohibited," and that "pillage is formally forbidden."
After the end of World War Two, the Geneva Conventions of 1949 again reaffirmed that "pillage is prohibited." These provisions bind all states. Codification of pillage as an offense in the Rome Statute of the International Criminal Court, and in the statutes of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone establish the prohibition as also binding upon non-state actors.
But what is the definition of pillage?
According to guidelines used by the International Criminal Court (ICC), pillage occurs when a perpetrator takes property from the legitimate owner for his or her private or personal use, without consent, in an armed conflict. Essentially, pillage is theft under the cover of war.
The requirement that the taking be perpetrated for the pillager's "private or personal use" is controversial and likely only applies, if at all, to the ICC.
Numerous cases brought after the Second World War successfully targeted representatives of companies that seized goods to support the Nazi or Japanese war effort; and jurisprudence in the International Criminal Tribunal for the Former Yugoslavia and in the Special Court for Sierra Leone also dispenses with any "private or personal use" limitation.
Have people been prosecuted for pillage?
Most recently, Charles Taylor, former president of Liberia, was convicted of war crimes charges that included aiding and abetting pillage during the civil war in Sierra Leone. Jean-Pierre Bemba, the former deputy president of the Democratic Republic of the Congo, is also accused of responsibility for pillage in the Central African Republic.
But what about companies or corporations?
Numerous businessmen and other officials, including representatives of companies such as IG Farben, Krupp and Dresdner Bank were convicted of pillaging goods from Nazi-occupied territory to support the German war effort and/or for more directly commercial ends. No business representatives have been prosecuted for such activity since the late 1940s. Nor have companies (as distinct from businessmen) ever been prosecuted for pillage.
Why revive prosecutions for corporate pillage?
Because pillaged natural resources are often among the principal sources of funding for regional conflict. Since the end of the Cold War, the illegal exploitation of natural resources has become a prevalent means of financing conflict in countries ranging from Angola and Afghanistan to Liberia, Myanmar, Sierra Leone and the Democratic Republic of the Congo.
The armed groups who perpetrate pillage rely on supposedly legitimate businesses and middle-men to turn pillaged goods into hard cash on the international markets.
In Cambodia, in the 1980s, rain forest timber shipped to Thailand provided funding for a decade long civil war. In Sierra Leone in the 1990s, rebel leaders traded the country's diamonds for weapons, fueling a brutal conflict that left tens of thousands dead or maimed. Illicit trafficking of coltan, gold, diamonds, and copper continues to sustain hostilities in the Democratic Republic of the Congo.
The sale of pillaged natural resources fuels war. Businesses that knowingly buy, process and trade in these pillaged goods are all accessories to the war crime of pillage. They should be prosecuted as such.
What is Open Society doing about it?
The Open Society Justice Initiative has supported legal work to bring about prosecutions for corporate pillage and related crimes. This has included supporting the investigation and development of a legal case against Argor-Heraeus S.A., a Swiss precious metals refiner, over its role in processing almost three tons of gold illegally pillaged form the Democratic Republic of Congo during fighting there.
We have also published a manual for prosecutors, Corporate War Crimes: Prosecuting the Pillage of Natural Resources. This is part of a larger anticorruption strategy which seeks to target the go-betweens and middle men who facilitate, and profit by, corruption related to natural resources, as well as our broader efforts to create a more open and transparent political and economic environment.