5 Justice after War: Economic Actors, Economic Crimes, and the Moral Imperative for Accountability after War
I. Introduction
A number of just war and transitional justice theorists propose that war crimes trials are a moral imperative at the conclusion of a conflict.1 The idea is that those responsible for leading communities into war unjustly and those responsible for the commission of atrocities during war should be held accountable for their conduct. Such accountability is widely viewed as either an essential component of the successful transition from conflict to peace or as relevant to our judgments about the overall justness of war. Rightly or wrongly, this goal of accountability after war has become dominated by the principles and processes of international criminal law that, in turn, reflect the “modalities of ordinary liberal criminal law.”2 Individualized and retrospective war crimes trials that accord to international standards have come to represent the paradigmatic method of achieving ideal justice outcomes following conflict.3 Other accountability mechanisms such as truth and reconciliation commissions may also play a role in the pursuit of post-conflict accountability.
One of the effects of the dominance of liberal criminal law on the field of accountability after atrocity has been the marginalization of the economic dimensions of conflict. As characterized by Kristen Boon, the economic dimensions of conflict include the economic causes of war, the economic agendas of state and non-state actors, and economic measures within post-war reconstruction efforts.4 So, for example, the default parameters of war crimes trials and truth and reconciliation commissions tend to exclude the contribution of economic actors (such as business entities) and of economic crimes (such as widespread corruption and tax evasion) to conflict.5 However, there are telling exceptions to this tendency that might point the way in which future practices could be modified to better account for the economic dimensions of war.
A dominant debate on war crimes trials in the post-conflict context is the question of a peace–justice dichotomy: considering whether and when accountability (justice) demands might properly be limited in the interest of achieving other valuable objectives – such as peace and reconciliation. Setting aside this debate and allowing that accountability for certain wrongs would constitute part of an ideal post-conflict transitional process, does theory tell us anything about who should be accountable and for what? This chapter is concerned with this question – of whether there are morally defensible grounds upon which certain crimes and/or certain actors should be pursued above others. More specifically, it is concerned with the question of whether there are defensible reasons for targeting economic actors and economic crimes in post-conflict accountability mechanisms.
An important contribution to this inquiry is just war theory. Just war theory concerns the ethics of war. This theory includes principles of just conduct after war (jus post bellum), as well as those relating to the justness of going to war (jus ad bellum) and the justness of conduct within war (jus in bello). While it is the least developed of the three limbs of just war theory, jus post bellum already provides guidance for questions of accountability after war. This chapter posits that three principles of jus post bellum support the expansion of post-conflict accountability mandates to include the economic dimensions of conflict where local conditions demand it. These are the principles of restitution and reparations, the relationship between equal treatment under law and legitimacy of process, and finally the goal of a durable peace.
The chapter is structured in the following way. Part II summarizes the claim that the economic dimensions of war have been marginalized in transitional justice to date. This marginalization of the economic in transitional justice is one manifestation of a broader separation in international law between peace and justice on the one hand and economics on the other. Part III then looks at the close connection between economic actors, economic crimes, and war. This is illustrated through the recent Report of the Liberian Truth and Reconciliation Commission on the role of economic crimes and economic actors in the Liberian war. Finally, Part IV considers some of the ethical principles of just war theory and in the transitional justice literature to argue that, in some cases, economic actors and economic crimes must be considered, and perhaps even prioritized, in transitional justice accountability measures if there is to be comprehensive justice after war.
II. The Peace and Justice/Economics Divide
As Boon writes, the “connection between peace, economic development, and freedom was keenly understood when the United Nations was created in 1944.”6 In the burst of international law building that took place within the peace agendas of states after World War II, many of the international institutions created had economic mandates. Among these were the specialized economic institutions of the World Bank and the International Monetary Fund.7 Likewise, in the international criminal justice framework established to judge and punish Germany’s crimes during World War II, economics again came into sharp relief. In the context of a prosecutorial program directed at those most responsible for international crimes committed during the war, a number of industrialists who held key positions in German corporate concerns were prosecuted. These prosecutions were intended to address the part played by industry in the crimes of the Nazi state.8
Yet, despite their shared genesis, international peace and justice agendas and international economic agendas have tended to progress along distinct planes. Today the two agendas are largely separated, substantively and institutionally, in international law and practice. For example, Boon has shown how until recently international institutions with primarily economic mandates, such as the World Bank and the International Monetary Fund, have failed to recognize their role in peace building despite an increasing presence in post-conflict states.9Likewise, while the agendas of many international financial institutions now explicitly relate to poverty reduction, these institutions have long denied the applicability of international human rights law (law that is essentially concerned with justice considerations) to their operations.10
Similarly, institutions with peace and justice mandates have avoided directly addressing economic considerations. For example, Jolyon Ford and Kyla Tienhaara have argued that the United Nations avoids the regulation of economic activity in their peace operations as a result of “an institutional mindset in UN circles that UN peace operations do not ‘do’ economic issues, even where natural resources were central to the conflict dynamic.”11 And, as outlined later, justice institutions aimed at accountability for mass atrocity have also largely ignored economic considerations.
War Crimes Trials
Since the Nuremberg precedent there are at least two ways that the economic dimensions of war have been marginalized in war crimes trials. First is the exclusion of crimes of an economic nature from the subject matter of international criminal law save the war crimes of pillaging and plunder.12 International criminal norms are generally directed at the protection of physical integrity.13 Perhaps there is something intuitively more reprehensible about widespread and systematic crimes of physical violence than economic ones. This is particularly so of those crimes against physical integrity with collective and discriminatory dimensions as is the case with the existing categories of international crimes. However, the general exclusion of widespread economic crimes belies the significant role that such crimes can play in the outbreak and reemergence of conflict and of the moral concerns surrounding opportunism and financial gain from atrocity.14
A second way in which the economic dimensions of conflict are marginalized in international criminal law refers to the actors to which it is directed. International criminal law is characterized by individualized criminal responsibility. As a result collective legal entities, such as private corporations, have been excluded from the jurisdiction personae of most international courts and tribunals to date.15 International criminal law is a key vehicle of narrative building in post-conflict settings.16 By excluding the role of collective business actors from its jurisprudence, the expression of the significant role business can, and has, played in many modern conflicts has been made more difficult. The effect has been the marginalization of this aspect of conflict from the narrative built by international criminal law and an escape from accountability for businesses involved in international crimes.
To some extent addressing the participation of business in international crimes could be achieved by pursuing individuals within corporate hierarchies.17 However, the participation of individual business actors in international crimes has not constituted a core component of prosecutorial policy since the Nuremberg Trials.18 Since then only a handful of cases have been directed at the business side of international crimes.19 This is despite comments by some prosecutors within international courts and tribunals of the intent to attend to the economic dimensions of the conflicts being investigated by them.20
The exclusion of the economic dimensions of conflict from international criminal law and practice has greater repercussions for accountability in the post-conflict context than simply an exclusion from this particular modality of accountability. Mark Drumbl has argued that accountability processes following atrocity have become dominated by the international criminal justice paradigm, which in turn is grounded in a Western-oriented liberal legalism.21 Drumbl shows how the “ascendancy of criminal trials discourages the development of alternate approaches to accountability,” which often results in a “troubling reductionism.”22 This reductionism is played out in various ways. For example, specific features of international criminal tribunal practice, such as referral and complementarity, incentivize national and local mimicry of international criminal law procedure.23 By preferencing accountability measures that mirror international criminal law practice, the operation of this paradigm of ideal justice may also encourage the diversion of limited resources from alternative domestic accountability mechanisms. Given the general exclusion of the economic dimensions of conflict from international criminal law, these dynamics may reduce the likelihood of accountability measures addressed to widespread economic crimes and at collective entities. It is precisely these kinds of crimes and entities with which liberal legalism struggles.24
Truth and Reconciliation Commissions
The economic dimensions of conflict have also been excluded to the greater part in truth and reconciliation commissions (TRCs).25 This is despite the capacity of TRCs to address a broader range of considerations than those allowed for (by their nature) in international trials directed at individual defendants. TRCs are an increasingly favored model for accounting and truth telling in the post-conflict setting. However, to date TRCs have tended to focus on violations of civil and political rights and violations of international humanitarian law and have largely neglected economic actors and economic crimes.26 In a recent survey of more than thirty-four TRCs to date, only three were found to have addressed economic crimes or socioeconomic rights violations.27 Similarly, few TRCs have explicitly considered the role of business in conflict. Exceptions include the South African TRC’s consideration of the role of business in apartheid in South Africa28 and the Sierra Leone TRC’s work on the role of the diamond industry in fueling local conflict.29 More recently, the Liberian TRC considered the commission of a wide range of economic crimes and the role of domestic and foreign business in the Liberian conflict and in doing so developed a definition of economic crimes for the purpose of its work.30 The failure of TRCs to consider economic actors and economic crimes has led William Schabas to argue in favor of the establishment of economic truth commissions directed specifically toward the economic causes of war.31
James Cavallaro and Sebastian Albuja argue that the tendency of TRCs to address a limited set of human rights violations is a result of the influence of an “international script” upon the design of specific TRCs. The influence of a script design is a result of a process of acculturation via “top down” modeling. The application of this script to the many differing sociopolitical contexts in which TRCs have been established has resulted in the mimicry of mandates that do not necessarily reflect the specific needs of the communities those institutions are there to serve.32 International actors and pressures are resulting in the homogenization of the work of TRCs with the effect of marginalizing the economic dimensions of conflict.
Transitional Justice
The marginalization of economic considerations in war crimes trials and TRCs reflects a broader tendency toward the same failure in transitional justice theory. For example, Zinaida Miller argues that areas of economic concern to post-conflict societies are rendered invisible in transitional justice contexts both discursively and in practice.33 This invisibility of economic concerns occurs through a double reduction of the economic. First, transitional justice has taken a legalistic rights approach to post-conflict challenges rather than one focused on matters of structural violence. Second, the rights discourse itself strongly preferences civil and political concerns over economic, social, and cultural ones.34
Likewise Louise Arbour attributes the neglect of economic, social, and cultural factors in transitional justice to the field’s genesis in international human rights and criminal law. She argues that the conception of justice generally adopted by the field of transitional justice fails to constitute a comprehensive ideal of justice.35 The insufficient attention paid to economic rights is “symptomatic of a deep ambivalence within justice systems about social justice.”36
For Arbour, a leap to a fuller conception of justice in transitional justice is needed for, among other things, instrumental reasons.37 If the broader objectives of transitional justice toward “social transformation and the prevention of conflict” are to be achieved then sources of grievances that have the capacity to fuel further conflict if left unattended must be addressed.38 In many cases corruption, tax evasion, widespread economic inequalities, the exploitation of natural resources, and other economic wrongs are deeply connected to local conflict and retain the potential to reignite conflict if ignored. A recent example of this deep relationship between economics and modern conflicts is reflected in the Report of the Liberian TRC. The following section describes dynamics of the relationship between economic factors and conflict. It also examines the Liberian TRC’s work to highlight both the potential of, and the challenges for, transitional justice institutions seeking to address the economic dimensions of conflict.
III. Economic Causes and Actors in War
Natural Resources and War
Economics is a central feature of many conflicts taking place in the world today. Take for example one of the most common concerns, the role of natural resources in war. Schabas argues that
Economic agendas may contribute significantly to the outbreak and the perpetuation of war. It seems that in our post-Cold War context, civil wars are often little more than campaigns to acquire access to natural resources and markets, although somewhere in the distant past it may be possible to identify a role for ideological factors and political objectives.39
Economists have shed light on this perceived correlation between natural resource dependence, resource markets, and conflict. There is a tendency in states economically dependent on natural resources to exhibit certain negative economic and political features that predispose those states to conflict. These features are often collectively referred to as the resource curse and they include significantly lower economic growth compared to economies not rich in natural resources;40 higher corruption levels;41 a greater tendency toward authoritarian, dictatorial, or unrepresentative government;42 and higher average military spending and militarization.43
States that are economically dependent on natural resources are statistically more likely to suffer civil wars than other states.44 There are a number of hypotheses as to why this is the case.45 For example, resource dependence can generate a political economy dominated by the contest for control of resource “rents” or “rent seeking” that in turn can lead to corruption and violence.46 Natural resource dependence is also considered to promote the detachment of the government from the populace as the government becomes less dependent on tax revenue. This detachment of the government is in turn considered to hinder democratic development.47 Revenue generated by resource production may be used to finance war to the advantage of either or both government and rebel groups. This revenue provides the means for violence to continue or to be upgraded.48 In relation to separatist civil wars, Michael Ross has proposed that “resource wealth tends to increase the casualty rate… by giving the government an incentive to react to small challenges with unusually harsh countermeasures.”49
Another way in which competition over natural resources may influence conflict is described by Thomas Pogge as a function of the global economic order and, in particular, the effect of the “international resource privilege.” This privilege refers to international practice whereby any group controlling the means of coercion within a country is globally recognized for the purpose of legally dealing with the country’s natural resources. Such a group is legally empowered to confer rights in the country’s resources irrespective of how their power was acquired.50 As a result Pogge posits that
Indifferent to how governmental power is acquired, the international resource privilege provides powerful incentives toward coup attempts and civil wars in the resource-rich countries.51
The Liberian Truth and Reconciliation Commission
The significance of resource markets and other economic crimes to the dynamics of conflicts is vividly illustrated in the recent report of the Liberian TRC.52 According to its mandate, the Commission was to investigate economic crimes such as the exploitation of natural or public resources to perpetuate the armed conflict.53 A significant amount of the Commission’s Final Report is dedicated to the subject of economic crimes and is a revealing story of the challenges faced by post-conflict institutions like the Liberian TRC in leading action on this subject.54
A first challenge for the Commission was the issue of what constitutes economic crimes, given that no international definition of such a category of crimes exists and the lack of a clear international consensus as to what it might include.55 After undertaking a comparative review of regional domestic law,56 and of relevant regional and international instruments, the Commission adopted the following definition:
i. Any prohibited activity committed for the purposes of generating economic gains or that in fact generates economic gains. It applies to any state or non-state actor with a link to the conflict in Liberia, including but not limited to public and private individuals, corporations, and other business entities whose economic activities contributed to those human rights and/or humanitarian laws violations in Liberia or that otherwise perpetrated armed conflict in Liberia as well as those who benefitted economically from armed conflict in Liberia.
ii. Any activity by a public or private person of any nationality, or domestic or international corporate entity conducting or facilitating business in or related to Liberia, or on behalf of the Liberian government, a Liberian business, or Liberian resident or citizen, committed with the objective of generating illicit profit either individually or collectively or in any organized manner by engaging in, among others, the following activities: fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms dealing, smuggling, sexual slavery, human trafficking and child labor, illegal mining, illegal natural resource extraction, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, and any other activity unlawful under domestic or international law.57
There are a few points worth making about this definition. First, economic crimes are defined to encompass both crimes of an economic nature, such as tax evasion, corruption, and money laundering (paragraph II), as well as human rights or humanitarian law abuses where these are committed for economic gain (paragraph I). It hence encompasses what tend to be treated as distinct phenomena and unifies these according to the common theme of economic gain.
Second, the term economic crimes denotes a category of crimes rather than a specific crime itself. It shares this in common with genocide, crimes against humanity, and war crimes, which perhaps influenced the Commission in this respect. The definition sets out a nonexhaustive list of activities that may constitute economic crimes. Again the emphasis is on the objective of economic gain as the unifying characteristic of this category of crimes.
Third, economic crimes are not limited by the principle of individual responsibility nor are they limited by the status of the offender or by nationality. They are directed equally to individuals and to corporate entities, to the public and private spheres, and to domestic and foreign actors.
Finally, it is worth noting that the definition of economic crimes is extremely broad and the list of possible activities constituting economic crimes is not exhaustive. This feature would presumably enable the progressive expansion of this category of crimes if it is embraced elsewhere.
It is beyond the scope of this chapter to address the many interesting questions that arise from the definition of economic crimes adopted by the Liberian TRC. These would include whether the definition adopted is a fair representation of international consensus, in so far as such a consensus exists; whether it is sufficiently prescriptive to meet the principle of legality; and even whether it is feasible and desirable to have a category of international economic crimes or whether the crimes it groups are better treated distinctly.
But what is clear is the need, in the view of the Commission, to treat what it defines as economic crimes on a par with the other war crimes and violations of civil and political rights more commonly the subject matter of truth commissions. The Report also illustrates the lack of international progress on these crimes relative to existing prohibitions under international humanitarian and criminal law.58
On the subject of economic crimes, the Commission concluded that “[E]conomic actors and economic activities played a crucial role in contributing to, and benefiting from, armed conflict in Liberia.”59 The Commission looked particularly closely at the timber, mining, and telecommunications industries. It found that successive governments in Liberia had established massive patronage systems with domestic and foreign owned corporations;60 that warring factions unlawfully transferred authority over natural resources to foreign corporate actors for the purpose of exploiting those resources in unregulated environments;61 that natural resources were illegally exploited to procure and distribute weapons;62 that enormous tax evasion took place, costing Liberia an estimated minimum of $64 million (U.S. million) in tax revenue;63 and that private corporate security forces were involved in widespread atrocities including forced evictions, attacks on civilians, and the intimidation of local communities.64
In its recommendations the Commission has urged the aggressive pursuit of civil and criminal actions against the perpetrators of economic crimes. Specific suspects have been named and these include foreign individuals and corporations.65 This feature of the Report highlights another challenge for institutions like the Liberian TRC seeking to address economic crimes. That is the problem of forums that might be applied to the task of investigating and either prosecuting or litigating economic crimes. On that score, the Liberian TRC has recommended the inclusion of legal entities and of economic crimes in the jurisdiction of a proposed “Extraordinary Criminal Court for Liberia.”66 It has also recommended that universal or foreign jurisdictions be used to address instances of economic crimes, although this raises the question of whether these crimes attract universal jurisdiction, which the Commission does not squarely address.67 The Commission calls for the government of Liberia to reform the legal tools available to it to combat economic crimes68 and recommends that the international community “establish legislation to safeguard states against economic crimes such as money laundering, foreign corrupt practice, arms smuggling and to combat obstacles such as bank secrecy.”69 These recommendations reflect the difficulty of limited forums and of limited existing international regulatory frameworks with respect to economic actors and economic crimes.
The economic dimensions of conflict are routinely neglected in post-conflict accountability practices and this neglect fails to reflect the central role economic concerns play in many conflicts today. The final part of this chapter now turns to just war theory. It sets out three normative principles of jus post bellum that support expanding the mandates of institutions aimed at accountability after conflict so as to include economic crimes and criminals. These are the principles of restitution and reparation; the principle of equality; and the goal of a durable peace.
IV. Jus Post Bellum and Accountability for Economic Crimes/Criminals
Just war theory is commonly described in a compartmentalized fashion. The three parts – jus ad bellum, jus in bello, and jus post bellum roughly correlate to the three phases of war: justice before war, justice during war, and justice after war. Before looking at the arguments given in favor of war crimes trials in just war theory, it is worth noting why the question of accountability after war is properly categorized as a component of justice after war.
Often a live question for the purpose of characterizing the content of the three categories of just war theory is when war begins and when it ends. Despite this difficulty, accountability for crimes related to war is considered a practice of jus post bellum. This is because the means of assigning responsibility in relation to war are often only plausible when there has been a cessation of conflict or at least some reduction in its scope. But, more important, accountability relates to jus post bellum because the assignment of responsibility in relation to war is directed, at least in part, toward closure. Closure for the victims, for example, by vindicating the wrong to them and through restorative measures such as apologies; closure for the perpetrators, for example, by verdict and punishment insulating that person from further punishment or through ritual reintegrations into their communities; and closure for the communities harmed by the wrongs for example by truth telling, discouraging vigilantism or by revaluing the communal interests harmed by the wrong. Additionally there is the closure of theory. By bringing violators of the other norms of just war theory to account we give moral resonance to those norms. In other words, to recognize a wrongdoer is to recognize a wrong.70
There is a general lacuna in just war theory as it relates to the period and the practices after war. However the one issue that has received perhaps the most comment is the question of war crimes trials and the moral imperative toward accountability and punishment after war.71 Michael Walzer argues that “[T]he assignment of responsibility is the critical test of the argument for justice.”72 This is because “[T]here can be no justice in war if there are not, ultimately, responsible men and women.”73 This moral question of responsibility is distinct from the question of whether and how we assign such responsibility and its repercussions, for example, whether that ought to be through war crimes trials, civil proceedings, truth and reconciliation commissions, lustration, indigenous justice processes, and so forth. Walzer notes this distinction when he writes:
Trials like those that took place at Nuremburg after World War II seem to me to be both defensible and necessary; the law must provide some recourse when our deepest moral values are savagely attacked. But such trials by no means exhaust the field of judgment.74
However, quite often in just war theory the moral question of the assignment of responsibility after war seems to become reduced to the practice of war crimes trials.
Many leading just war theorists describe war crimes trials as a norm prescribed by justice after war.75 For example, Gary Bass argues that “war crimes trials are morally mandated because they place the blame on individuals, stripping away the veneer of statehood to reveal human beings making choices.”76 Likewise, Brian Orend posits a “normative need for war crimes trials.”77 In his short list of prescriptive norms toward justice after war, Orend includes the principles that we should punish aggressors (Punishment Norm #1) and punish violators of the laws of war (Punishment Norm #2) pursuant to “fair and public international trials for war crimes.”78 The separate categories for these two norms of punishment in Orend’s work mirror the distinction in international law between the crime of aggression on the one hand and war crimes on the other. In that sense they are essentially descriptive of existing legal distinctions. Probably the strongest advocate of war crimes trials as a moral imperative after war is Davida Kellogg, who argues that war crimes trials are the “natural, logically, and morally indispensible end stage of Just War.”79
Given the conceptual and procedural focus of international criminal law outlined previously, the reduction of essentially a means of doing justice (in a narrow sense)80 to a norm of justice after war is problematic. This is because war crimes trials carry with them a pedigree of systematically prioritizing civil and political harms over economic harms and suffer a disciplinary difficulty in dealing with economic and collective actors. We should be wary then of reducing a moral imperative in favor of accountability after war with war crimes trials specifically. We might however be guided by the types of justifications advanced for war crimes trials when we consider the appropriate scope of accountability measures after war.
There are many ways in which the moral arguments toward war crimes trials in post-conflict societies may support the targeting of economic actors and economic crimes in specific sociopolitical contexts. For example, familiar criminal law tenets are often raised in favor of the moral need for accountability after war, such as deterrence, atonement, rehabilitation, stigmatization, minimizing denial, preempting vigilantism, education, removing leaders from office, and respecting the worth, status, and suffering of victims.81 Without looking at each individually,82 it is worth noting that in as much as economic crimes and business actors are ignored in post-conflict accountability measures, then each of these values, if we accept that they can be achieved through post-conflict accountability mechanisms, is unmet in the case of those crimes, those victims, those perpetrators. The perpetrators are not stigmatized, the conduct is not deterred, the values harmed are not validated, and the expressive effect of silence feeds a narrative that these crimes and these criminals are not as significant, that some harms are simply the cost of doing business. As Robert Cryer notes in his work on selectivity in international criminal law, “[I]t should not be forgotten that whenever a crime goes unpunished, there is an unrighted wrong to the victim and to the relevant society.”83This is particularly pertinent at an international level where, unlike domestic systems, other regulatory schemes that capture those same actors and wrongs do not exist. Given that the war crimes trial model dominates international responses to atrocity, the kinds of goals outlined previously are generally not then captured through other responses.
Beyond the traditional domestic justifications for accountability are justifications for accountability after war specific to just war theory. There are three ethical principles applicable to determining justice after war in particular that shed some light on the question of addressing economic actors and economic crimes that I wish to look at here. These are restitution and reparations, the values of equality and legitimacy, and the goal of a durable peace.
Restitution and Reparations
Restitution and reparations are often described as normative principles of justice after war. For example, Larry May has suggested that restitution, which he equates with the return of lost or stolen goods, and reparations, which concern the repair or rectification of goods, should be goals of ideal justice after war.84 Likewise reparations feature in the post-war normative principles of Richard DiMeglio,85 Orend,86 and Bass.87 However, a matter that is often overlooked is the relationship between retrieving or repairing goods and proceeds of war for the purpose of restitution and reparation programs, on the one hand, and the targeting of economic actors and economic crimes in accountability measures after war, on the other hand.
Bass has argued that the burden of economic restoration ought to fall as far as possible on war supporters and profiteers.88 To give an example of this he points to German industries that participated in, and financially benefited from, the crimes of Nazi Germany during World War II, such as the corporate concerns of I. G. Farben and Krupp.89 He also points to the example of government officials lining their bank accounts “by the exploitation of state power.”90 Likewise, Orend has argued that if financial restitution is required as a matter of justice after war it must be subject to the principles of proportionality and discrimination.91 The latter principle mandates discriminating between members of the community in terms of who bears the costs of compensating harms from the war.92
Despite these concerns to discriminate between morally appropriate and inappropriate sources for restitution and reparation measures, both Bass and Orend distinguish the norm of restitution and reparation from the norm of war crimes trials. Bass notes that:
War crimes trials can never punish all the guilty… so reparations offer another way of punishing those who, while perhaps not criminally guilty, bear some responsibility for abetting a genocide.93
But in order to target those who bear greater responsibility for reparations and restitution after war, some legitimate judicial processes must be applied to determine responsibility. To act otherwise is to jeopardize the legitimacy, both legal and moral, of the claim of right over the assets being demanded.
Taking up Bass’s example of Krupp and Farben, the fact is that directors of those two corporate concerns were prosecuted for the involvement of those companies in the war. As a result of those criminal prosecutions we have hundreds of pages of judgments describing the ways in which those corporations were instruments of war. Most people would therefore have little difficulty accepting the moral and legal claim of the international community in recovering the ill-gained assets of those corporate entities.
The factor overlooked by the equation of accountability after war with war crimes trials and further with the separation of those trials from the norm of reparations and restitution is the matter of according due process to those persons from whom restitution and reparations are being sought. In the United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Restitution for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,94 the need to ensure the due process rights of persons from whom reparations are sought is highlighted at paragraph 15, where it states:
In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparations to the victim.95
Ensuring that the accountability measures adopted and prioritized in post-conflict societies are directed at economic actors and economic crimes is closely related to the goals of restitution and reparations. The example of the Liberian TRC is again instructive. The Commission links the goals of restitution and reparations to a call for the aggressive investigation and prosecution of economic crimes. For example, the prosecution of corporations and individuals for economic crimes is linked to nationalization of corporate assets unlawfully acquired, to restitution, and to lustration measures.96 The Commission also recommends that justice agencies offer incentives to perpetrators of economic crimes to voluntarily restore goods in exchange for avoiding prosecution, litigation, or as a basis for the mitigation of penalties.97 Reparation measures are also linked to the prosecution of economic crimes. The Commission estimates economic crimes proceeds could garner $3.3 million (U.S. million) per annum over thirty years for a proposed TRC Reparation Trust Fund.98 In a similar vein, restitution and reparation were arguments advanced in favor of the inclusion of legal persons in the jurisdiction of the International Criminal Court.99
If restitution and reparation are norms of justice after war then we need to give serious thought as to how they are to be achieved. If we seek to recover assets from those individuals and legal entities that it is believed may have improperly profited from war, then we must subject those persons to legal procedures aimed at gleaning their role and where they may defend against any allegations of wrongdoing. This is needed not only on the basis of the inherent value of due process to the rule of law but to legitimize, both morally and legally, any action taken against them.
Equality and Legitimacy
A number of just war theorists have argued with respect to war crimes trials that these should be subject to a commitment toward equal treatment.100 This commitment dictates that war crimes trials should avoid constituting victor’s justice by ensuring that violations of the laws of war by actors from all sides of a conflict are subjected equally to post-war justice efforts. In a similar vein, May posits a principle of reconciliation. Among other things this principle mandates a “duty to treat those against whom war has been waged as equals, deserving of maximal respect, regardless of which side of the war a person is from.”101
The demand for equality before the law relates closely to the problem of selectivity in international criminal law. Cryer sets out the various selectivity arguments as they pertain to international criminal law and which of these might, if well founded, impact upon the legitimacy of its processes.102 For Cryer, selectivity in international criminal law includes at least two types. First, there is selectivity in the process of defining the crimes and the general principles of liability that will constitute the subject matter of international courts and tribunals. Second, there is selectivity as to the persons targeted for prosecution for the commission of those crimes. It is this latter form of selectivity that is usually being referred to in calls for equal treatment after conflict in jus post bellum.
Complaints regarding the exclusion of economic crimes and economic actors from post-conflict accountability mechanisms are also essentially concerns regarding selectivity. However, unlike the usual calls for equal treatment before the law in jus post bellum theory, these complaints span both of Cryer’s categories of selectivity. This is because, as outlined earlier, there is a double exclusion of the economic in international criminal law. It occurs originally through the scope of an institution’s jurisdiction and subsequently through decisions surrounding enforcement. But as Cryer notes, selectivity necessarily occurs in any legal system. So the real question is whether and when it becomes unacceptable.103
There are broadly two equality arguments that could be made with respect to addressing the exclusion of the economic from international criminal law. The first is posited by James Stewart in his work on corporations and international criminal law.104 Referring to the problem of geographical bias in international criminal practice, Stewart notes that a criticism of international criminal law is that international criminal courts and tribunals have disproportionately directed their attentions to the global south.105 This criticism may be seen as a version of the problem of victor’s justice in that the more powerful states in international affairs are able to avoid the intrusion of international criminal justice into their sovereign affairs while weaker states on the international stage cannot. For Stewart, the prosecution of Western businesses and their representatives for the commission of international crimes is a means of making headway toward an international criminal justice system “unstained by the flaw of selectivity” and hence one with a greater claim to legitimacy.106
This point might be taken further. A second possible argument in favor of targeting transnational corporations and their representatives for international crimes refers to the legitimacy of a process undertaken in the name of an international community that in turn fails to address the role of certain actors that show a particular propensity to be aligned with the interests of internationally influential states. As the Liberian case study indicates, foreign directed corporations can come to play a significant role in certain conflicts. Many may be nationals of the same countries politically dominant in setting international agenda. For example, the majority of nonfinancial transnational corporations operating around the world today still emanate from the global north. In 2005, the top twenty-five nonfinancial transnational corporations ranked according to foreign assets were incorporated in the United States, the United Kingdom, the Netherlands, Japan, France, Germany, and Hong Kong/China.107 Notably, four of these countries are permanent members of the UN Security Council.
The integrity of processes undertaken in the name of the international community can be called into question where those processes systematically ignore a category of actors that have a propensity to be aligned with states particularly influential in international affairs. A sentiment of this kind lay behind criticisms of the ICTY Prosecutor not to investigate the question of possible war crimes committed by NATO in its campaign in Kosovo.108 By systematically ignoring actors that might be assigned to their side in the conflict, the international community is just not as credible in its justice efforts.
A Durable Peace
Ultimately, how do we judge the ethical termination of war? One proposed measure is the commitment, subject to proportionality, of war crimes trials that seek to treat all sides equally. The reasons for war crimes trials as a measure of justice after war include respecting the worth of victims and of the values that have been wronged, preventing vigilantism, and stigmatizing and deterring offenders. But accountability measures are not only justified by these ends. They should also be understood as tools to achieving the ultimate goal of justice after war, which I propose is a durable peace.
While different just war and transitional justice theorists have proposed different overarching ethical determinants for judging the just termination of war, most look beyond simply bringing the current conflict to an end. Instead, a general theme is that something better should ideally be established after the war than that which existed before. This is because to allow conditions to remain the same after war as they were before would fail to prevent the risk of the reignition of violence and would fail to vindicate rights the protection of which were reasons for going to war in the first place.
For example, Walzer argues that the ultimate goal after war should be a “better state of peace,” by which he means “more secure than the status quo ante bellum, less vulnerable to territorial expansion, safer for ordinary men and women and for their domestic self-determinations.”109 For Orend, the just aim of a just war is a “more secure possession of our rights, both individual and collective.”110 It is “the vindication of those rights whose violation grounded the resort to war in the first place.”111 For Arbour, the ambition of transitional justice must be
… to assist the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to – but also beyond – the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that pre-dated the conflict and caused or contributed to it.112
Likewise, Carsten Stahn argues that the “ultimate purpose of fair and just peace-making is to remove the causes of violence,”113 while for DiMeglio “the final judgment on winning war will result from the attainment of a just and sustainable peace.”114 Without wishing to reduce the distinctions between these theorists, what each has in common is that a just end to war is not simply an end to this war but a reduction in the risk of the resurgence of violence by improving the human rights situation that exists. The goal of just termination of war is attempting to secure a durable peace.
As described earlier, often war crimes trials are justified on the basis that this will instantiate the other principles of just war theory. By punishing aggressors and violators of the laws of war we are giving substance to the norms of jus ad bellum and jus in bello respectively. In my view this is an important but narrow view of the prospective value of measures after war aimed at accountability for wrongs. If jus post bellum looks beyond the conclusion of this particular conflict and has the loftier goal of improving conditions so as to reduce the risks of a future resort to violence then we might equally conceive that accountability measures ought to be broader in scope than simply remedying the wrongs of this war.
As Arbour states, if we look beyond the abuses committed during the conflict towards the human rights violations that preexisted a conflict and caused or contributed to it, transitional justice practitioners “will very likely expose a great number of discriminatory practices and violations of economic, social and cultural rights.”115 Increasingly the myth that economic, social, and cultural rights, as opposed to civil and political rights, are injusticiable is being dispelled.116 If transitional justice accountability measures fail to account for the economic dimensions of conflict then the conditions giving rise to the conflict in the first instance may go unattended and may continue to foster the kinds of grievances likely to see a reemergence of conflict. Depending on the nature of the conflict in question, if the vindication of economic, cultural, and social rights is equally or perhaps even more significant than the vindication of civil and political rights in securing a durable peace, then a community ought to be empowered to direct their accountability measures to those abuses rather than as directed by any international script.
V. Conclusion
The targeting of economic crimes and economic actors in post-conflict accountability measures might be justified on grounds other than those that have been outlined here. Some have argued that the failure to target economic crimes in the Latin American truth commissions has meant that those measures failed to demythologize a popular belief that corruption is a feature of democracy and not of dictatorships, which in turn accounts for the ongoing popularity of authoritarian figures in those countries.117 Other arguments in favor of targeting economic actors and economic crimes include addressing the prevailing impunity of business actors for international crimes,118 ensuring that the ill-gotten financial gains of elites cannot be used to avoid justice with respect to other human rights abuses,119 and ensuring that local communities can develop a sense of ownership over those transitional justice mechanisms being adopted in their names by addressing the kinds of actors and crimes considered significant by them.120
But in addition to these, just war theory gives us three principles that support the proposition in favor of accounting for economic wrongs in post-conflict justice mechanisms. The first is the goal of restitution and reparations. If a fairer system favors targeting those who have financially benefited and profiteered from war, then post-conflict accountability measures must target those kinds of crimes and those kinds of actors pertinent to that goal. Not only will this go some way toward ensuring natural justice to those persons targeted for restitutions, in doing so it provides the moral and legal justification for the seizure of those assets. Given the significant difficulty that can be faced in obtaining funding for international development projects, the need to recover such assets cannot be understated.
The second is a commitment to equality and legitimacy. Many conflicts today involve foreign and international economic actors. Many of these still emanate from the global north. By failing to account for these actors in accountability mechanisms adopted in post-conflict societies, largely as a result of modeling derived from internationalist pressures, victim communities might legitimately question whether all sides to the conflict are being treated equally and may question the legitimacy of those accountability institutions. A more robust account of causes and actors in war ensures a stronger commitment to the principle of equality and may help improve the legitimacy of international justice efforts.
The final principle of just war theory that supports the targeting of economic crimes and actors in post-conflict justice institutions is the overall goal of a durable peace. Economic grievances, economic exploitation, and economic inequalities can reignite conflict if ignored. A just war does not simply mean an end to this war. A just war looks to promote conditions likely to avoid future violence. On that score, addressing systemic economic wrongs is perhaps even more crucial than addressing civil and political rights violations.
1 See Part IV.
2 , Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007), 206.
3 For a description of the dominance of liberal criminal law and its modalities in relation to atrocity crimes: see generally Drumbl, Atrocity, Punishment and International Law.
4 , “Coining a New Jurisdiction: The Security Council as Economic Peacekeeper,” Vanderbilt Journal of Transnational Law41(4) (2008): 991–1042 at 995–6.
5 On the exclusion of economic considerations in transitional justice and related fields see Part II.
6 Boon, “Coining a New Jurisdiction,” 997. The recognition of economic matters in the post–World War II justice and peace building processes may have been in part motivated by a desire to rectify the failure of states to address the economic dimensions of World War I in the inter-war period and the ways in which this failure contributed to the outbreak of World War II: Boon, “Coining a New Jurisdiction,” 997–1000.
7 Boon, “Coining a New Jurisdiction,” 998–9.
8 For an illuminating piece on the industrialist trials at Nuremberg and the agenda to include industry in the post–World War II international justice framework, see the recent work of legal historian Jonathan Bush: , “The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said,” Columbia Law Review109 (2009): 1094–262.
9 , “Open for Business: International Financial Institutions, Post-Conflict Economic Reform, and the Rule of Law,” New York University Journal of International Law and Politics39 (2007): 513–81.
10 , “A Right by any Other Name: The Evasive Engagement of International Financial Institutions with Human Rights,” The George Washington International Law Review40(4) (2009): 1101–56.
11 and , Too Little, Too Late? International Oversight of Contract Negotiations in Post-Conflict Liberia (Centre for International Governance and Justice, Issues Paper 12, 2009), 21.
12 For example, prohibitions of pillage and plunder are contained in the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Arts. 8(2)(a)(iv), 8(2)(b)(xvi), 8(2)(d)(v), 8(2)(d)(xii). Another possibility is the suggestion that corruption might constitute a crime against humanity: , “Corruption as an International Crime and Crime against Humanity: An Outline of Criminal Justice Policies,” Journal of International Criminal Justice4(3) (2006), 466–84. On indigenous spoliation as an international economic crime: , International Law of Responsibility for Economic Crimes (Aldershot: Ashgate, 2006).
13 , “War Economies, Economic Actors and International Criminal Law,” in Profiting from Peace: Managing the Resource Dimensions of Civil War, ed. K. Ballentine and H. Nitzschke (Boulder, London: Lynne Rienner Publishers, 2005), 431.
14 On the relationship between economic factors and conflict, see Part III.
15 The most recent example of this was the failure of a draft article to include legal persons in the jurisdiction of the International Criminal Court. The decision to omit the provision for corporate criminal liability within the Rome Statute was based on a view that the proposal, while meritorious, was premature. For an outline of the debates see , “The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court,” in Liability of Multinational Corporations under International Law, ed. M. T. Kamminga and S. Zia-Zarifi (The Hague: Kluwer Law International, 2000), 139–95. On the claim that corporate entities – while not prosecuted – came within the jurisdiction of the International Military Tribunal sitting at Nuremberg see Bush, “The Prehistory of Corporations.”
16 Drumbl, Atrocity, Punishment and International Law, 3.
17 On limitations of individual criminal responsibility in the context of corporate crimes see and , Corporations, Crime and Accountability (Cambridge: Cambridge University Press, 1993), 17–58.
18 Schabas, “War Economies,” 440.
19 Examples include the indictment before the International Criminal Tribunal of Rwanda of Felicien Kubaga and the Dutch prosecutions of businessmen Frans van Anraat and Guus Kousenhoven. On the Dutch prosecutions, see and , “Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity,” Journal of International Criminal Justice8(3) (2010): 803–28.
20 Schabas, “War Economies,” 425, 440.
21 Drumbl, Atrocity, Punishment and International Law.
22 Ibid., 148.
23 Ibid., 138–47.
24 On the failure of liberal criminal law to address “white collar” crimes and criminals, see , “Why Corporations Kill and Get Away With it: The Failure of Law to Cope with Crime in Organizations,” in System Criminality in International Law, ed. A. Nollkaemper and H. van der Wilt (Cambridge: Cambridge University Press, 2009), 42–68.
25 and , “The Lost Agenda: Economic Crimes and Truth Commissions in Latin America and Beyond,” in Transitional Justice From Below: Grassroots Activism and the Struggle for Change, ed. K. McEvoy and L. McGregor (Oxford and Portland, Oregon: Hart Publishing, 2008), 121–41; , “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice,” The International Journal of Transitional Justice2 (2008): 266–91 at 276–8; , “Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?” The International Journal of Transitional Justice2 (2008): 310–30 at 315–6.
26 , “Economic and Social Justice for Societies in Transition,” New York University Journal of International Law and Politics40 (2007): 1–27 at 19; Schabas, “War Economies,” 435.
27 Carranza, “Plunder and Pain,” 315. To this list should now be added the Liberian TRC.
28 South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report (2003) Vol 4, Ch 2, 18–58. Although often held up as a model in this regard, Schabas notes that even in the case of the South African TRC, the role of business in apartheid was addressed largely “as an afterthought,” Schabas, “War Economies,” 435.
29 Sierra Leone Truth and Reconciliation Commission, Sierra Leone Truth and Reconciliation Commission Final Report, (2004) Vol 2, Ch 2, 107–9.
30 The Liberian TRC’s work on economic crimes is set out further in Part III.
31 Schabas, “War Economies,” 435–7.
32 Cavallaro and Albuja, “The Lost Agenda,” 123–6.
33 Miller, “Effects of Invisibility.”
34 Ibid., 276–7.
35 Arbour, “Economic and Social Justice for Societies in Transition,” 4.
36 Ibid., 5.
37 Ibid., 8.
38 Ibid.
39 Schabas, “War Economies,” 426.
40 and , “The Curse of Natural Resources,” 45 European Economic Review45 (2001): 827–38.
41 and , “Natural Resource Intensity and Economic Growth,” in Development Policies in Natural Resource Economies, ed. J. Mayer, B. Chambers, and A. Farooq (Cheltenham: Edward Elgar, 1999), 13–38.
42 , “Does Oil Hinder Democracy?” World Politics53 (2001): 325–61.
43 , Extractive Sectors and the Poor (Boston: Oxfam America, 2001), 15.
44 and , Greed and Grievance in Civil War (Centre for the Study of African Economies, CSAE WPS/2002–01, 2002); and , “On Economic Causes of Civil War,” Oxford Economic Papers50 (1998): 563–73; , “How Do Natural Resources Influence Civil War? Evidence from Thirteen Cases,” International Organization58 (2004): 35–67; , “What Do We Know About Natural Resources and Civil War?” Journal of Peace Research41(3) (2004): 337–56.
45 For an assessment of some of the more common hypotheses regarding the causal nexus between natural resource dependence and civil war, see Ross, “How Do Natural Resources Influence Civil War.”
46 P. Collier, “Natural Resources and Conflict in Africa.” War in Africa, (October 2004) http://www.crimesofwar.org/africa-mag/afr_04_collier.html. Rent is a term used by economists to refer to the profits produced by an activity that are much higher than the minimum level needed to keep the activity going.
47 Collier, “Natural Resources and Conflict in Africa.”
48 , “The Political Ecology of War: Natural Resources and Armed Conflict,” Political Geography20 (2001): 561–84.
49 Ross, “How Do Natural Resources Influence Civil War?” 61.
50 , World Poverty and Human Rights, 2nd edition (Cambridge: Polity Press, 2008), 118–22.
51 Ibid., 119.
52 According to the International Centre for Transitional Justice, the inclusion of economic crimes was considered particularly important if the dynamics of the conflict were to be understood: , , and , Liberia: Beyond the Truth and Reconciliation Commission: Transitional Justice Options in Liberia (International Centre for Transitional Justice, May 2010), 6.
53 An Act to Establish the Truth and Reconciliation Commission of Liberia, enacted by the National Transitional Legislative Assembly on 12 May 2005, Article 4(a), http://www.trcofliberia.org/about/trc-mandate.
54 Republic of Liberia, Truth and Reconciliation Commission, Economic Crimes and the Conflict, Exploitation and Abuse Vol. Three, Appendices Title III (2009) (hereafter referred to as Report, Vol. Three). The Liberian TRC’s reports are available at http://www.trcofliberia.org/reports/final.
55 Report, Vol. Three, paragraphs 8–17.
56 The Commission focused in particular on domestic legislation in Kenya and Nigeria on the basis that these two countries have the “highest levels of corruption in Africa”: Report, Vol. Three, paragraph 11.
57 The term illicit profit is in turn defined as “the significant increase in the assets of a public official, private person or corporate entity, which cannot be explained or justified in relation to one’s position, income or corporate profit”: Report, Vol. Three, paragraph 8.
58 There have, however, been a number of significant international and regional developments on specific economic crimes, especially the crimes of corruption and bribery. See for example, the United Nations Convention Against Corruption, opened for signature 31 October 2003 (entered into force 14 December 2005); OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, 37 ILM 1, (entered into force 15 February 1999).
59 Report, Vol. Three, paragraph 3.
60 Report, Vol. Three, paragraph 4.
61 Report, Vol. Three, paragraph 135.
62 Report, Vol. Three, paragraph 134.
63 Report, Vol. Three, paragraphs 37–44. This estimate relates to tax evasion in the logging industry alone.
64 Report, Vol. Three, paragraphs 48–61 (logging industry); 105–11 (mining industry).
65 Report, Vol. Three, paragraph 140. A list of individuals and corporations recommended for further investigation is set out in Report, Vol. Three, Table 1, 6–9. See also the Republic of Liberia, Truth and Reconciliation Commission, Consolidated Final Report vol. 2 (2009): 369–76 (Recommendations: Economic Crimes Investigation and Prosecution).
66 Republic of Liberia, Truth and Reconciliation Commission, Consolidated Final Report vol. 2, Annex 2: Draft Statute: Extraordinary Criminal Court, 426–59, Articles 15(2) and 14(11) (2009).
67 Report, Vol. Three, paragraph 171.
68 Report, Vol. Three, paragraph 140
69 Report, Vol. Three, paragraph 173.
70 On the assignment of responsibility after war as a means of instantiating the other norms of just war theory, see , Just and Unjust Wars, 4th edition (New York: Basic Books, 2006), 287–8; , “Jus Post Bellum,” Philosophy and Public Affairs32(4) (2004): 384–412 at 406. On closure as a principle of jus post bellum in Walzer’s work, see , “The Evolution of the Just War Tradition: Defining Jus Post Bellum,” Military Law Review186 (2005): 116–63 at 139–40. Accountability might further be described as a practice of jus post bellum because of its role in promoting the transformation to peace and the reestablishment of the rule of law.
71 B. Orend, The Morality of War (New York: Broadview Press, Reference Orend2006), 170.
72 Walzer, Just and Unjust Wars, 287.
73 Ibid., 288.
74 Ibid. Orend seems to be making a similar point when he distinguishes the fields of just war theory and international law, both conceptually and practically. He argues that the former is a set of morally mandated principles guiding our determinations on the ethics of conduct related to war. The latter refers to legally binding principles derived either from treaties, jurisprudence, or custom that are subject (ideally) to legal enforcement. For Orend, just war theory is ideally the moral marker that provides compelling ethical principles to guide the construction of legal principle: , “Jus Post Bellum: The Perspective of a Just War Theorist,” Leiden Journal of International Law20(3) (2007): 571–91 at 571–2. However on the subject of war crimes trials this relationship seems to be reversed and existing practice sets the benchmark for theory.
75 Apart from those mentioned in the text, see also , “Jus Post Bellum: The Moral Responsibilities of Victors in War,” Naval War College ReviewLVII (3/4) (2004): 33–52 at 47–8. An exception is the work of Schuck as described by DiMeglio, where accountability after war is not a core principle in his theory on post-war justice: DiMeglio, “The Evolution of the Just War Tradition,” 134–7. Although Walzer notes that the legal assignment of accountability through war crimes trials does not exhaust the field of judgment, his work on the assignment of responsibility for war focuses on the same kinds of conduct and actors generally targeted in war crimes trials practice: Walzer, Just and Unjust Wars, Part V.
76 Bass, “Jus Post Bellum,” 404.
77 Orend, The Morality of War, 170.
78 Ibid., 180–1.
79 , “Jus Post Bellum: The Importance of War Crimes Trials,” Parameters32(3) (2002): 87–99 at 88.
80 A word is warranted here on terminology. A difficulty in writing about justice after war from a legalist perspective is the different meanings of justice. As Orend describes, on the one hand justice can be narrowly construed to refer to some form of judicial process that reckons with wrongs committed and metes out punishments or remedies to respond to those wrongs in order to achieve broader goals: Orend, “Jus Post Bellum,” 574. It is this meaning of the word justice being connoted by the term “in a narrow sense.” Justice, however, also has a broader meaning, particularly in just war theory, to refer to a broader array of activities by and through which we measure the overall fairness of war: Orend, “Jus Post Bellum,” 574. Generally justice is being used in the broad sense in this chapter.
81 Orend, The Morality of War, 165; Bass, “Jus Post Bellum,” 404.
82 On how the expressive capacity of criminal punishment recommends the targeting of corporations, see , “In Defence of Corporate Criminal Liability,” Harvard Journal of Law and Public Policy23(3) (2000): 833–58. A number of commentators have noted that the expressive capacity justification for international criminal punishments is probably the one with the strongest claim in the context of international criminal justice: see, for example, , “What is the Point of International Criminal Justice?” Chicago-Kent Law Review83(1) (2008): 329–65; , “The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law,” Stanford Journal of International Law43 (2007): 39–94.
83 R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, (Cambridge: Cambridge University Press, Reference Cryer2005), 193.
84 See Chapter 2, this volume.
85 DiMeglio, “The Evolution of the Just War Tradition,” 158–62.
86 Orend, “Jus Post Bellum,” 580.
87 Bass, “Jus Post Bellum,” 408.
88 Ibid.
89 Ibid., 409. Among other things, their participation included supplying poison gas for the death camps, spoliation, and the use of slave labor.
90 Ibid. He goes on to argue that war ought to be a bad economic prospect: Bass, “Jus Post Bellum,” 410. The current effective impunity of economic actors and for economic crimes does not tend toward that goal.
91 Orend, “Jus Post Bellum,” 580.
92 Ibid.
93 Bass, “Jus Post Bellum,” 409.
94 General Assembly Resolution 60/147, UN Doc A/RES/60/47, (21 March 2006).
95 Emphasis added. See also paragraph 27 which states: “Nothing in this document is to be considered as derogating from internationally or nationally protected rights of others, in particular the right of an accused person to benefit from applicable standards of due process.”
96 Republic of Liberia, Truth and Reconciliation Commission (2009) Consolidated Final Report, Vol Two, 373–6.
97 Republic of Liberia, Truth and Reconciliation Commission (2009) Consolidated Final Report, Vol Two, 370.
98 Republic of Liberia, Truth and Reconciliation Commission (2009) Consolidated Final Report, Vol Two, 467.
99 Clapham, “The Question of Jurisdiction,” 147.
100 Orend, The Morality of War, 177–8; Orend, “Jus Post Bellum,” 580; and , “Jus Post Bellum: Just War Theory and the Principles of Just Peace,” International Studies Perspectives7 (2006): 309–20 at 318.
101 See Chapter 2, this volume, page 48.
102 Cryer, Prosecuting International Crimes, 191–231.
103 Cryer, Prosecuting International Crimes, 192.
104 , “Atrocity, Commerce and Accountability: The International Criminal Liability of Corporate Actors,” Journal of International Criminal Justice8 (2010): 313–26.
105 Ibid., 317–8.
106 Ibid., 318 (quoting Damaska).
107 United Nations Conference on Trade and Development (UNCTD), World Investment Report 2007: Transnational Corporations, Extractive Industries and Development, (New York and Geneva: United Nations, 2007), 229.
108 Cryer, Prosecuting International Crimes, 214–20.
109 Walzer, Just and Unjust Wars, 121–2.
110 Orend, “Jus Post Bellum,” 578.
111 Ibid. See also Williams and Caldwell, “Jus Post Bellum,” 316.
112 Arbour, “Economic and Social Justice for Societies in Transition,” 3.
113 , “‘Jus ad bellum,’ ‘jus in bello’… ‘jus post bellum’? – Rethinking the Conception of the Law of Armed Force,” European Journal of International Law17(5) (2007): 921–43 at 936.
114 DiMeglio, “The Evolution of the Just War Tradition,” 163.
115 Arbour, “Economic and Social Justice for Societies in Transition,” 3.
116 Ibid., 10–14.
117 Cavallaro and Albuja, “The Lost Agenda” 129.
118 , “Prosecuting Corporations for International Crimes: The Role for Domestic Criminal Law,” in International Criminal Law and Philosophy, ed. L. May and Z. Hoskins (Cambridge: Cambridge University Press, 2010), 108–37.
119 , “Plunder and Pain,” 311–14. The Liberian TRC in fact notes this dynamic where it recommends the confiscation of assets unlawfully acquired through economic crimes “… so as to prevent the perpetrators from using unlawfully acquired wealth to frustrate and obstruct justice to their gain and to the disadvantage of the public interest”: Republic of Liberia, Truth and Reconciliation Commission (2009) Consolidated Final Report, Vol Two, 373.
120 Carranza, “Plunder and Pain,” 315.
