Chicago journal of international law, Vol. 14, no. 2, winter 2014, p. 524-558
Patrick J. Keenan
The illicit exploitation of natural resources — often called conflict minerals — has been associated with some of the worst violence in the past half-century, especially in the Democratic Republic of Congo. Prosecutors and scholars have struggled to develop legal tools to adequately hold accountable those who have been responsible for the exploitation of civilians and resources in conflict. The most common legal tool, the crime of pillage, has been inadequate because it has been applied only to discrete, relatively small episodes of theft. As important as it has been, the episodic theory is of limited utility when applied to what have been called resource wars in which combatants struggled for control over access to exploitable resources. In these conflicts, there was substantial evidence that a principal reason for the conflict and an important source of revenue to fund the various fighting forces was resource revenue. In response, scholars and advocates have attempted to develop a corporate theory of the crime of pillage. The corporate theory calls for the prosecution of individuals or entities who purchase or use resources derived from conflict areas or that are extracted under the direction of those involved in the war. The problem with the two dominant theories of pillage is that the episodic theory of prosecution fits squarely into existing law but is too narrow to address the kinds of harms that occur in modern resource wars, and the corporate theory of prosecution fits the facts but is too broad to fit comfortably into existing law. What has been missing is a theory that fits the facts more closely while at the same time fitting more easily into existing law. This Article supplies such a theory, one that is consistent with the law underpinning the traditional episodic theory while accomplishing some of the goals of the corporate theory. Under the systematic approach, individuals could face prosecution for their participation in large-scale pillage operations, such as controlling a mine whose proceeds were used to fund the fighting. Using the International Criminal Court’s ongoing prosecution of Bosco Ntaganda, a notorious Congolese warlord, as a case study, this Article shows that the systematic theory of pillage would allow for prosecution when individuals created a process or system by which to engage in exploit resources they did not own — a form of theft — when that exploitation was sufficiently connected to the overall conflict.