Grand Theft Global - Prosecuting the War Crime of Natural Resource Pillage in the Democratic Republic of the Congo

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Executive summary

From the Islamic State of Iraq and the Levant (ISIL) to the Lord’s Resistance Army (LRA) to Al-Shabaab, many of the world’s most infamous and destabilizing armed actors today finance their activities in part through the illegal exploitation and trade of natural resources. Theft in the context of armed conflict constitutes the war crime of pillage, which is punishable in most domestic jurisdictions and at the International Criminal Court (ICC).

Prosecuting armed actors and their facilitators for natural resource pillage can help reduce incomes for perpetrators of atrocities, combat resource exploitation, and end the impunity that enables illegal financial networks to thrive in conflict zones. Furthermore, investigating pillage can strengthen cases addressing violent atrocity crimes like rape and murder by uncovering critical information about command responsibility and criminal intent. Prosecutions are a direct, effective way to help disrupt conflict financing and improve accountability for economic crimes—like trafficking and money laundering—and the atrocities they fuel.

Despite the prevalence of natural resource-driven armed conflict, rarely are individuals and companies held criminally responsible for natural resource theft in war. From the Horn of Africa across the eastern and central regions of the continent, some of the deadliest ongoing conflicts in modern history are fueled in part by stolen natural resources. The Sudanese government draws income from a deadly gold trade in Darfur, the LRA and Séléka militias in the Central African Republic poach elephants for ivory trafficking, and an illicit charcoal trade in Africa’s oldest national park, Virunga, helps fuel one of the region’s most destabilizing rebel forces, the Forces Démocratiques de Libération du Rwanda (FDLR).

The theft of natural resources—primarily minerals—is particularly destabilizing in the Democratic Republic of the Congo. Often mined and transported by civilians under threat of extreme violence, minerals provide lucrative incomes to rebels, factions of the Congolese army, and the businesses with which they work, helping to sustain their violent activities. Professor Gregoire Mpungu at Kinshasa University told Enough, “Most places where minerals are being exploited, rape is also going on.”   In some cases, theft in eastern Congo is highly orchestrated, spanning multiple countries and involving a range of actors. In the Great Lakes region, these networks include indicted war criminals, militias, business people, and government officials. Beyond the war zones, these networks involve corporations, front companies, traffickers, banks, and other actors in the international system that benefit from theft and money laundering.

Policymakers and nongovernmental organizations worldwide are paying increasing attention to combating natural resource-driven conflict in Africa’s Great Lakes region, spurring new efforts to cut off funding to armed groups in Congo. The U.N. and U.S. sanctions regimes for Congo address illegal natural resource exploitation linked to armed groups.  Government agencies in the United States and Africa’s Great Lakes region have introduced new border enforcement programs to curb the illegal trade of wildlife and ivory.  The conflict minerals disclosure requirements of the 2010 U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act are among several new initiatives aimed at spurring more responsible supply chain management, and a number of companies have taken leading roles in reducing the global demand for untraceable minerals that may help fuel armed violence in Congo. Many of these initiatives have helped reduce income to armed groups, stimulated more formal minerals markets, and increased transparency and accountability related to illegal activities.

Global efforts to address violent conflict associated with Congo’s lucrative natural resources, however, are missing one powerful tool: criminal prosecution for the theft of those resources.  Accountability for war crimes is a critical component of sustainable peace, with the potential to achieve goals that regulation and sanctions schemes cannot. Prosecuting widespread natural resource pillage would combat the impunity that allows these crimes to continue. Prosecutions could undermine the power of key actors who orchestrate criminal networks by physically removing them from crime scenes. Prosecutions invite the participation of victims and witnesses, and prosecutions can result in the seizure of a defendant’s assets in order to provide reparations for victims, helping to restore dignity and cohesion among affected communities. Prosecutions, unlike sanctions or supply chain regulations, create a public record of how crimes are committed. Such records deconstruct and expose how economic incentives interact with and enable atrocities, which is critical for preventing their recurrence.

Research conducted by the Enough Project in eastern Congo and The Hague reveals broad support, especially among affected communities and Congolese human rights defenders, for the prosecution of natural resource pillage. “Economic crimes are part of daily life here,” said one member of the bar in eastern Congo. “Mafia practices find good breeding ground here, and they’re mostly focused on natural resources—minerals and forests.”  A Congolese ex-minister said, “It’s a compelling idea: go after the worst human rights violators for economic crimes.”

The Congolese military justice system, the ICC, and national courts in numerous countries can prosecute the worst suspected perpetrators of this crime—some of whom are already facing trial in The Hague, and some of whom continue to fan the flames of conflict. Many national jurisdictions can also prosecute the individuals and companies that knowingly purchase or otherwise appropriate resources that were illegally acquired during armed conflict.

A number of steps, if begun now, will help advance cases and seed accountability for these crimes. Congo needs to increase the independence and expertise in its military court system and establish specialized mixed chambers to prosecute high-level war crimes cases, including natural resource pillage. The International Criminal Court has a number of cases in its docket addressing crimes that may have been fueled by the theft of natural resources, but the court needs specialized expertise in economic crimes and a comprehensive strategy for investigating the theft of natural resources as it relates to atrocity crimes. National jurisdictions and law enforcement agencies can address individuals and corporate entities further up the international supply chain that support, facilitate, and benefit from theft in Congo’s armed conflict. By building more independent legal structures and expertise in the regions where theft in war occurs, and by encouraging better coordination among international actors with the power to investigate and apprehend individuals and entities implicated in natural resource theft, policymakers and legal practitioners could break new ground toward ending the world’s worst resource-driven violence.

Recommendations

  1. International Criminal Court Chief Prosecutor Fatou Bensouda should revive the court’s financial crimes unit, which was discontinued for lack of effectiveness. With the resource support of the ICC Assembly of State Parties, she should appoint special advisors on financial forensics and natural resource theft, and she should develop a comprehensive approach to investigating and prosecuting widespread pillage. In particular, her office should expand investigations in Congo, the Central African Republic, and Sudan to cover natural resource pillage, especially theft of minerals and ivory. Congolese authorities and the U.N. peacekeeping mission in Congo, MONUSCO, should cooperate in the joint effort to collect evidence, apprehend indictees, and protect witnesses and victims.
  2. U.N. and U.S. Special Envoys to Congo and the region, Said Djinnit and Russ Feingold, and European Union Senior Coordinator for the Great Lakes Koen Vervaeke, should pressure the Congolese government to strengthen protections against political interference and intimidation in the military justice system. Djinnit, Feingold, and Vervaeke should encourage the appointment of high-ranking judges in the east and prevent the unnecessary transfer of cases to different jurisdictions mid-adjudication. Individuals within the military justice system suspected of tampering with or destroying evidence or intimidating witnesses, investigators, or jurists working on pillage cases should be held responsible.
  3. The U.S. Department of State’s Bureau of International Narcotics and Law Enforcement (INL) should support MONUSCO’s justice unit and prosecution support cells as they assist their national counterparts in gathering evidence—physical, documentary and testimonial—on the war crime of natural resource pillage and atrocity crimes.
  4. Djinnit, Feingold, and U.S. Ambassador-At-Large for War Crimes Issues Stephen Rapp should intensify their efforts to support the establishment of specialized mixed chambers in Congo, which could prosecute natural resource pillage and atrocity crimes. Building on the significant support they have shown the proposal thus far, the envoys should continue to encourage Congo’s new justice minister, Alexis Thambwe Mwamba, to present the draft bill of mixed chambers draft bill to the national assembly for approval, while also highlighting the importance of the bill among members of the Congolese national assembly. In the event of the establishment of the mixed chambers, the U.N. Security Council should issue a resolution to enforce the court’s regional jurisdiction and the extraditions of accused individuals in Rwanda and Uganda.
  5. As it conducts its investigations, the U. N. Group of Experts in Congo should investigate financial flows stemming from minerals trafficking with attention to the elements of the war crime of pillage. The Group should submit evidence of pillage to the ICC and any relevant national courts, including those within Congo’s military justice system.
  6. The U.S. Agency for International Development (USAID) and the International Center for Transitional Justice should provide training on investigating and prosecuting the war crime of pillage for investigators, lawyers, and judges in Congo. Ambassador Rapp should encourage the Congolese army to open its military archives to those investigating the war crime of natural resource pillage and other atrocity crimes to improve access to evidence and crucial information related to military command and control.

 

Read the full report here. (PDF)