Beyond Sanctioning Elusive War Criminals, Prosecute the Profiteers

Bidibidi is the world’s second-largest refugee camp. A sea of tents and huts spilling into Uganda from its northern border, the settlement now hosts more than a quarter million South Sudanese seeking safety from a range of horrors in their country, including routine electrocution in torture camps and rape by government soldiers. Last summer, militias perpetrated gender-based violence “on a massive scale” in Unity State, the pride of South Sudan’s oil barons. This is where industry and militarization meet, with government militias paid in revenues reaped from petrol extraction, and repressive tactics surging in service of control over lucrative land.

Survivors of these crimes, along with concerned members of the international community, are searching for justice. The barriers are many, including both an utter lack of will by the South Sudanese government, a co-opted, gutted judicial system, and weakened regional and international systems. For those affected, and for those who care, there has been nowhere to turn to hold the perpetrators of atrocities directly accountable in a court of law.

But an innovative legal strategy being tried by a few advocacy groups and prosecutors holds new promise. In short: Follow the money.

Financial sanctions have long been a critical intervention. But teams that investigate and prosecute the world’s most serious crimes in court are largely ignoring the financial dimensions. In so doing, they’re missing valuable testimony, documentary evidence, and a deeper understanding of criminal networks. As a result, we rarely see executives and corporate entities face consequences in courtrooms, despite their crucial roles in modern armed conflict and atrocities.

In February, a United Nations commission on South Sudan warned, “Impunity is…deeply entrenched in South Sudan’s political culture and legal systems, effectively placing government forces and officials and their allied forces above the law.” Absent the possibility of domestic prosecutions, the next options such as international courts are also non-starters. The government of South Sudan has not agreed to participate in the most obvious venue of recourse, the International Criminal Court. And while the 2018 peace agreement includes commitments to establish a specialized hybrid court of international and South Sudanese jurists, the government has blocked any meaningful follow-through,  and the African Union, which has the authority to step in, also has opted out.

From South Sudan to Syria to Myanmar, it has become clear the world lacks adequate mechanisms to prosecute state actors for extreme violence against their own citizens. But state-sponsored mass atrocities are often driven by greed and massive profiteering. Probing the financial dimensions of the world’s deadliest armed conflicts could lead to unexplored avenues for war crimes prosecutions, and improve the credibility of justice efforts overall.

Crimes like forced disappearance and sexual violence may seem detached from illicit finance streams and commercial interests, but they can be part of complex strategies supported by corporate networks. Reporting on one of the Democratic Republic of Congo’s most dangerous armed groups, a U.N. agency said in 2016, “The FDLR have structured a dense and diversified economic web, which in return shapes their military activities.” Another example came in June 2018: French authorities indicted the cement company La Farge on evidence of its complicity in the self-styled Islamic State’s brutalities in Syria.

Violent actors rely on business networks, financing, and equipment to inflict harm on a large scale. In turn, brokers, extractives companies, banks, arms dealers, and shell companies stand to earn millions by facilitating violent strategies on resource-rich land.

More Bloody, Costly, and Intractable Wars

With widespread impunity, many of the most powerful co-conspirators and facilitators of atrocities continue operating quite profitably. And their roles are far from negligible. As scholar James G. Stewart has put it, “As a consequence of the illegal trade in minerals, metals, timber, and natural resources, armed conflicts in which participants are able to draw upon easily accessible natural resource wealth are often more bloody, financially costly, and intractable than other forms of armed violence.”

These dirty money dynamics are often quite clear to those directly impacted. Last summer, a man forced to flee South Sudan spoke to me at a hotel bar in a neighboring capital city. He held a position close enough to power that he met me in secret and could not reveal his identity for this piece. I asked about the objectives of the war. “Frustrate these people,” he said, referring to South Sudanese seeking refuge from attacks in their communities. “Let them leave.”

He paused, his gaze training on the ice in his glass. “And it worked.” Indeed, the refugee flow from South Sudan to bordering countries is one of the fastest-growing in the world. Many are leaving areas endowed with lucrative timber, oil, and strategic trafficking routes. The government’s end goal? I asked. He tipped his eyes up to look at me directly. “They’re rich now.”

Network sanctions and anti-money laundering measures, deployed to create consequences for abusive regimes, are crucial responses to this dynamic. Much more could be done on that front.

But in addition, targeting financial accomplices and illicit cash flows directly through courts could have a transformative impact on the drive for justice. Prosecutors could map corporate profiles of army commanders, investigate complicit executives operating abroad, and seize criminally derived assets.

The ICC, the new hybrid court emerging in the Central African Republic, and war crimes units in the U.S. and Europe have the tools to do this integration, but they’re leaving those innovations on the table. To be sure, investigating and prosecuting war crimes is complex and challenging enough without adding this extra dimension. The stakes are high, and the money for training and expertise is tight. But financial motivations, impacts, and actors are a crucial part of the perpetration of war crimes. Incorporating mechanisms to probe them could produce a fuller picture of how atrocity crimes are executed, illuminate vital documentary evidence, and generate funds with asset seizures to pay for much-needed reparations.

Multiplying Jurisdictions

Moreover, financial investigations could have a multiplier effect on the number of potential jurisdictions with the authority to prosecute. Case in point: When the rebel group Nationalist and Integrationist Front committed atrocities during Congo’s second civil war, they were running a lucrative gold cartel out of one of the country’s largest mining areas. The direct perpetrators were never prosecuted for their crimes, but diligent investigations into the gold supply chains, who profited, and where the money wound up, revealed six different countries with authority to investigate, including the U.K.

Authorities in every government concerned with ending the world’s worst humanitarian crises should take a closer look at the commercial actors in their backyards. Many countries providing perpetrators a financial safe haven have war crimes and transnational crimes units. With the right resources, those specialized teams can investigate and pursue the financial facilitators and impacts of ongoing atrocity crimes. Domestic and international courts can seize criminally derived assets in the course of both criminal and civil trials, and that money should furnish reparations programs designed by survivors and their communities.

War is a moneyed place, and greed is often the fuel and incentive behind the world’s most horrific war crimes. Accepting that fact, acting on it, could be pivotal for the pursuit of justice. Without such a shift, some of the most powerful engines of violence will continue operating, and victims and survivors will almost certainly remain without adequate reparations – a perversion given the exorbitant wealth the facilitators and profiteers have stashed away.

Just last month, South Sudan’s oil minister heralded new international interest in the country’s black gold, promising to bring development “back to pre-war levels.” These announcements are alarming, given mounting links between oil and mass atrocities and a sense that for South Sudan’s government, business ambition and militarization are corollaries. Each new effort to probe those links will add volume to a crucial global message: no matter where they operate, war crimes profiteers will be held accountable. That warning is currently a murmur.

This article is based on a new report by the author published at The Sentry, Prosecute the Profiteers: Following the Money to Support War Crimes Accountability.”

IMAGE: Two men walk in March 2014 near the Paloch oil fields in Upper Nile State, the site of an oil complex and key crude oil processing facility in the north of the country near the border with Sudan. Fighting in South Sudan had cut production from the country’s lifeline oilfields by about 29 percent, according to the press secretary to President Salva Kiir at the time. In late February that year, rebels loyal to rival Riek Machar had captured Malakal, the capital of Upper Nile state where most of South Sudan’s oil was produced. (Photo by ALI NGETHI/AFP/Getty Images)

 

About the Author(s)

Holly Dranginis

Senior Legal Analyst for The Sentry.