Guest post by Erik Zouave: Iraq, Syria and the trade in opposition oil Part II: On balancing pillage against claims for legitimate use of natural resource wealth
On 30 June 2014, Erik Tristan Zouave (LLM University of York), a former Research Assistant at the Swedish National Defense College International Law Center, gave a general background of the recent seizing of oil wells by armed groups, such as ISIS, in Syria and Iraq. Today, he analyzes whether such actions can be treated and prosecuted as pillage.
In my first blog post on this topic, I provided a background of armed group activities and control of oil in Syria and Iraq. Leaving the issue of economic interference and the prohibition of aggression aside – this post considers the legal relevance of individuals, Syrian and otherwise, trading in opposition-held oil. In the light of reports on the recent push to establish a tribunal for Syria in the United Nations’ General Assembly, it considers the following questions: should the individuals that extract and trade in the oil be worried that they might incur criminal liability under international humanitarian law (IHL)? What are the counter-arguments that might be launched for the legality of such trade?
First, in this post I present a legal analysis, demonstrating the strong historical connection between the crime of pillaging and individual criminal liability in humanitarian law. I will briefly argue that the custom of criminal liability entails a high risk for anyone willing to trade in opposition oil and that the counterarguments that may preclude individual criminal liability are weak in the case of NIACs. The counterarguments that will be met concern self-determination, government recognition and the policy-argument of applying the concept of usufruct on organized armed groups. The ambition with the argumentation of the post is to serve foremost as a brief overview of arguments and legal trends. I am not claiming that any such arguments have been mobilized to legitimize trade with extremist factions such as ISIS.
Pillage and the illegality of prejudicing permanent sovereignty over natural resources
The prohibition of pillage is one of the early mechanisms of distinction in international humanitarian law to protect the property of civilians (and occupied territories) in times of conflict. In the context of IACs, the Hague Regulations (Art 52), this protection of property has notably been restricted in scope, allowing for requisition of “moveable property…which may be used for military operations” if used for “the needs of the army of occupation.” This prohibition has been reinforced in instruments such as Additional Protocol II to the Geneva Conventions (Art. 4(2)(g)) and its enumerations of fundamental guarantees and related prohibitions as well as in the 1949 Geneva Convention IV (Art. 33) stating:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.
Additionally, pillage also has an especially strong history of individual criminal liability in humanitarian law, going back to the Lieber Code (Art. 44), sternly prescribing the death sentence for any individual brazen enough to breach the prohibition:
All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.
A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
More recently with regard to criminal liability, the crime of pillage has also been incorporated into in the Rome Statute (Art. 8(2)(b)(xvi) and Art. 8(2)(e)(v)) among its “other serious violations of laws.” While this post cannot comprehensively list the many instruments that form the basis of the summative law behind pillage, valuable inventories can be in the texts by Michael McGregor and James G. Stewart.
As cogently argued by Rogier Bartels, some inconsistencies with regards to how the exceptions to pillage have been applied in NIACs and between IHL and international criminal law are also noteworthy. Firstly, he observes that NIACs don’t seem to have a tradition of a clear exception that allows for military requisition, or to the contrary. However, he further notes that in a number of recent cases (notably Fofana, Kondewa, Banda and Jerbo), the Special Court for Sierra Leone and the International Criminal Court (ICC) have classified the requisition of materials such as ammunition, vehicles and boots as pillage.
The purpose of the remaining post is to set out more fully the legal framework on pillage and apply it the factual landscape set out above. In doing so, it illustrates that any individual or company willing to extract, smuggle or trade in opposition oil are risking individual criminal responsibility for the crime of pillage.
I) Some examples of successful cases and convictions through history
The case law on pillage, as amply illustrated by James G. Stewart’s table of cases is vast and has spanned both international armed conflicts (IACs) and non-international armed conflicts (NIACs). Given the extensive case history, it may be helpful to illustrate some trends in the case law, quantitatively, in order to illustrate the strong tradition of individual criminal liability.
The Nuremburg Trials handed down verdicts of guilt against businessmen, military personnel, civil servants and ministers of Nazi Germany, on 124 incidents, perpetrated on both the eastern and western fronts (in the cases of I.G Farben, Krupp, Flick, Roechling, Ministries and Pohl etc).
The Tokyo International Military Tribunal handed down verdicts of guilt against members of the Japanese military, on two incidents perpetrated in the Philippines and China (in the cases of Yamashita and Takashi Sakai).
The International Criminal Tribunal for former Yugoslavia handed down verdicts of guilt against members of military forces on 15 incidents perpetrated in the territories constituting former Yugoslavia (in the cases of Kubura Jelsic, Kordic, Cerkez, Martic, Naletilic, and Martinovic).
The Special Court for Sierra Leone handed down verdicts of guilt on 18 incidents perpetrated in Sierra Leone against military personnel (in the cases of Fofana, Kondewa, Sesay, Kallo, Gbao, Kamara, Brima, and Kanu).
Moreover, apart from the individual criminal liability for pillage, the International Court of Justice established, in DRC v Uganda that States that fail in their duty to be vigilant against and prevent acts of pillage by armed groups on territories that they control trigger responsibility and a duty of reparations.
II) The definition of pillage
While it is generally acknowledged that there is some superfluous variety in the language of the law concerning pillage (referring to synonyms such as “spoliation,” “looting,” and “plunder” that are used interchangeably with “pillage” by courts), it is the specific components within the definition of the crime of pillage -requisition/appropriation and intent – that make it especially salient for situations like smuggling Syrian opposition oil.
As implicated by the case history (above) courts and tribunals have had to clarify the definition of the crime of pillage on several occasions. In the I.G. Farben case, the Nuremburg International Military Tribunal cited the Hague Regulations as a point of departure:
The pertinent portions of Articles 45-52 of the Hague Regulations are: ‘Private property . . . must be respected’ and ‘. . . cannot be confiscated’ (Art. 46); ‘Pillage is formally forbidden’ (Art. 47); ‘an occupying army may make requisitions in kind only “for the needs of the army of occupation” , and ‘they shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.’ (Art. 52).
Citing its previous jurisprudence, and explaining its relation to NIACs, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia stated in the Prosecutor v Enver Haszihasanovic and Amir Kubura (§34):
Finally, the Trial Chamber considered the previous jurisprudence of the Tribunal, which holds that in international armed conflicts the crime of plunder includes all forms of unlawful appropriation of property. Since Article 3(e) prohibits acts of looting committed by individual soldiers for their private gain and the organised seizure of property undertaken within the framework of a systematic exploitation of occupied territory, the Trial Chamber “provisionally” decided that the prohibition on those acts is applicable in both international and non-international armed conflicts.
The International Criminal Court (ICC) has further identified five elements of pillage (Art. 8(2)(e)(v)), as it envisions them for NIACs, in its Elements of Crimes commentary:
1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.an armed conflict.
Following the approaches above, pillage can only be proven if there has been an act of requisition or appropriation of property. As noted in ICC’s Katanga judgment (§907), the ICC’s Elements of Crimes do not preclude that pillage is also applicable to the property of belligerents, or those participating in the conflict, as long as the requisition in fact cannot be justified by military necessity. Initially it may also be recounted that in his very thorough review of resource ownership, Stewart shows that ownership of resources can be both private and public (as they often are), making pillage applicable to all appropriations and thus also making it an act that would prejudice a State’s permanent sovereignty of its resources. Indeed, the notion of a State’s permanent sovereignty over its resources is commonly recounted in environmental law preambles and has been found to be customary by the ICJ in DRC v Uganda (§ 244) case.
There are thus roughly two types of appropriation evident in the case law (above). Firstly, there is appropriation in terms of a direct seizure or extraction of natural resources or property. Secondly, there is the acquisition of stolen property. An example of the first type of appropriation is seen in the Singapore Oil Stocks case (analysis available here) where the Japanese Army was found to have plundered Dutch crude oil assets in Singapore. This first category of appropriation could thus be directly applicable to members of the opposition extracting crude oil from the wells, or hypothetically to any foreign actor who aids them or participates in doing so. Examples of the second type of appropriation, the acquisition of the stolen goods is seen in the Pohl, Roechling and I. G. Farben cases in the Nuremburg Tribunal and could be applicable to anyone buying the oil from the opposition or any of the smuggling parties.
To see whether such acts on the international level can fall under the crime of pillage, one must consider the intent of the alleged perpetrator. This component of the crime may seem unnecessary to explore in this case given the unambiguous nature of the EU and US decisions (see first post) and their public motivations for lifting the sanctions (see below). In lifting the sanctions on Syria, those motivations were openly concerned with facilitating the trade of opposition-held oil, possibly through western corporations. However, for the purposes of the current post, it is still useful to look into this second type of appropriation (the acquisition of pillaged oil from armed groups).
The ordinary criminal acts of handling of, dealing in, or appropriating pillaged goods are not elevated to a separate international crime. To see whether such acts on the international level can fall under the crime of pillage, one must consider the intent of the alleged perpetrator. In the Martic case (§104), the ICTY Trial Chamber held that “[w]ith respect to the mens rea of pillage, the unlawful appropriation of property must have been perpetrated with either direct or indirect intent”. The ICC Elements of Crimes for pillage mention that “[t]heperpetrator intended to deprive the owner of the property”, i.e. contrary to the rightful owner’s will. This could be read as covering only the first type, but Article 30 of the Rome Statute explains that “a person has intent where […][i]n relation to a consequence that person […] is aware that it will occur in the ordinary course of events”. As indirect intent entails the perpetrator’s knowledge that his acts are likely or probable to have the consequences concerned, i.e. that the rightful owner would be deprived of their property through or in relation to the purchase, it can be argued that the acquisition of pillaged oil falls under the crime of pillage.
III) The association to the conflict
For an act to qualify as a war crime, there needs to be an association (nexus) between the appropriation of property and the ongoing conflict (see Kunarac §§55-61; and the ICC Elements of Crimes for Article 8). The act in question cannot be a case of theft unrelated to the ongoing violence of the war. So, could actors like individuals and corporations in Turkey, the Kurdistan Regional Government (autonomous under the Iraqi constitution) or even the US and EU, so far removed from the conflict from a geographical perspective, satisfy that association purely through their trade in smuggled oil? The question seems to have an affirmative answer.
As illustrated by the case history (above) it is not only military personnel that have been found guilty of pillage, but also businessmen. While it may concluded that these civilians usually constitute citizens of a warring party, it may likewise be concluded that the association with the conflict arises out of the fact that the money has tended to be funneled back into the State machinery to fund its war efforts. For a vivid picture of the interrelated nature of natural resources and modern intra-State wars, see L. Arimatsu and H. Mistry. A more detailed account of this reasoning is presented in Stewart’s review (see also McGreogor’s discussion on mens rea).
A review of this combined analysis implies that the possibility that the revenue from the oil may further the opposition’s war effort (see David Butter’s comment in the background section of this post) could be a sufficient association with the conflict to incur criminal liability. Hence, anyone trading with opposition oil would be associated with the violence by virtue of funding it.
Counterarguments to the illegality of trading in opposition oil
There are three counterarguments that can be pitted against the standards set out by the instruments and case law above. The first logical way in which pillage can be challenged is through legal arguments relating to entitlement to and ownership of resources. Hence, one could claim that resource use is a “right of peoples” rather than States. Secondly, it could be argued that one of the parties claiming ownership of the resources does not actually constitute the government of the State. A third (and less common) argument is the policy argument made by Stewart, that elements of Hague Law should be imported into NIACs so that armed groups can legally claim usufruct of resources (commonly understood to entail “[t]he right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing”) in order to promote compliance with IHL generally.
I) Self-determination – Natural resources as a “right of peoples”
It has been seen above that one of the arguments that can be mobilized for the legality of resource extraction other than by the official State authority is the argument that there is a relation between natural resources and self-determination, i.e. that permanent sovereignty is not a right of States but of peoples.
Historically this argument has been applied to decolonization to protect the newly independent States and their populations from predatory resource extraction from their former colonial patrons. In the current context, the EU for example, did decide that it would be appropriate, and beneficial for the population of Deir Al-Zour and Al-Hassakah to lift the oil embargoes and trade with the insurgent controlled provinces (see hereand here).
As a normative argument this would relate to the 1962 UN General Assembly Resolution 1803 stating that “permanent sovereignty… must be exercised in the interest of their development and well-being of the people…” Hence, the argument presents a logical link between the public right to a resource and the public benefit that can be drawn from its exploitation. While environmental (and resource) protection was not envisioned in the original instruments and interpretations relating to self-determination, it was introduced in the UN Declaration on Permanent Sovereignty of Natural Resources (see the 1993 Conference Report for the Unrepresented Nations and Peoples Organization International Conference).
As both self-determination and permanent sovereignty over natural resources as a “right of peoples” are so closely related to a history and notion of colonialism and decolonization, a careful interpretation is very likely to exclude claims based on religious, ethnic or political grievances against a government authority status quo ante (the possible exception being that the government is a racist regime and claims of ethnicity or religion are valid to that argument). The UN Declaration on Permanent Sovereignty of Natural Resources for example was also generated with a colonial context in mind. This is also indicated by the procedural history and supporting documentation and resolutions (see here). Arguments for an extension in scope seldom go beyond an indigenous right to permanent sovereignty in relation to self-determination (see for examplehereand here). Some scholars, such as James Crawford go as far as questioning whether permanent sovereignty over natural resources is a right of peoples at all, rather than right of States, in non-colonial contexts.
While it seems that this restrictive view on permanent sovereignty over natural resources as a right of peoples is well established, it may also be criticized for two reasons. Firstly, the right of peoples to dispose of their natural wealth is enshrined in Common Article 1 to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. Secondly, the actual language in the provisions tends to use neutral universal language, i.e. “peoples and nations,” and “all peoples.” Nevertheless, without case-law or the common backing of scholars to support this argument in cases of alleged pillage, it remains a weak counterargument.
II) (Non)Recognition of a government – Legitimate claims to natural resources
It may be argued that the oil was illegitimately used by the Syrian regime for funding the oppression of its own people in the first place (see here). In fact, many Middle Eastern States have used oil revenue as the main income to bolster their security apparatuses and funding these State organs tend to be a top priority within the State budget. Legally, this argument may take two approaches. Observers will either argue (i) that the Assad government is in fact not the government and another entity holds recognition as the government of a State or (ii) question whether the oil is owned by the government by virtue of an armed group exercising control over the territory with the resources.
In order to posit an entity’s claim for government, that claim must be backed by recognition. Dapko Akande (here and here) and Stefan Talmon have discussed the issue of recognizing contestant groups to an established government authority to some extent within the contexts of the Libyan and Syrian conflicts. In the case of Syria, it seems that at least United Kingdom and France may have expressed recognition of the Syrian Opposition Coalition (see here and here). While this post cannot approach the matter with the same detail, there are a few key points which should be highlighted.
Firstly, Akande and Talmon show that the actual legal implications behind statements of recognition are complex, and even when they are made, States tend to restrict the scope of their recognition. For example, based on the intent of the States that recognize the Syrian opposition, Akande concludes that it is a recognition of a legitimate struggle rather than government, and is meant to increase the international political legitimacy of certain factions of the opposition over others. Additionally, both authors cite U.S. statements with regard to Libya, illustrating the roundabout ways States avoid making the declarations a meaningful recognition of a government, but retain the opportunity to provide political support.
Secondly, as Talmon points out, recognizing an armed group prematurely, or under the wrong circumstances may actually amount to an illegal interference with the matters of the sovereign State. Talmon makes the argument that opposition forces exercising control over a portion of a State’s territory can only be recognized as government of that swathe of land, de facto rather than de jure. Stewart would further argue that the armed group would also have to claim the title of government or secession.
In order to further the dispute of a government’s illegitimate claim for resources, arguments must rather be formulated based on the summative understanding of the legal capacities of armed groups in IHL. Stewart, argues in his review on ownership of natural resources in conflict:
Even though certain national jurisdictions have accepted that the rebel groups’ seizures might be lawful to the extent that the group effectively controls the territory, a growing body of more recent jurisprudence insists that ineffective national law remains applicable in rebel held territories.
A criticism that might be launched against Stewart’s argument is that the jurisprudence he cites is not recent at all, nor clearly concerned with the issues of rebel ownership. It should nevertheless be acknowledged that while the case-law is not necessarily straightforward, it does present a consistent logic and legal history, and certainly one that cannot be effectively refuted with contrary jurisprudence. As for recognition, the work of Talmon and Akande cogently illustrates the ambiguity behind statements of recognition and the risks of interpreting those statements too far.
III) Rebel usufruct – Natural resources as a carrot to motivate IHL compliance
As a final argument to tolerate armed groups’ extraction of resources, Stewart argues that elements of Hague Law should be imported into NIACs so that armed groups can legally claim usufruct of resources in order to promote compliance with IHL generally. Specifically, the component of the law that Stewart suggests to import from IACs to NIACs is the legality of extracting resources for the welfare of the population on the territory (see the ICJ case DRC v Uganda§249) The idea is that if armed groups have the ability to reap the financial benefits of the territories they control as a result of IHL, they will be better inclined to respect (and protect) the rights of the subjects within those territories.
I submit that this is a policy-argument rather than legal argument. The law of occupation, and usufructuary has traditionally not been extended to NIACs but has been developed for the situation of one sovereign being displaced by another who takes certain obligations with regard to the occupied subjects. While usufructuary may place armed groups in a better financial position to manage the territories they control, it also places them in a better position to finance their violence. When the representatives of some States are willing to misappropriate funds to finance the oppression of its subjects, even while subject to international scrutiny, can less transparent structures such as armed groups ever be trusted? In order to seriously consider this argument, the actual direct and indirect welfare benefits of populations under the control of rebels that draw economic benefits from the resources of that territory must be further explored. Secondly, those possible benefits must be weighed against the risks and implications of the extension of violence between government and the armed group. The authors of the UNEP law inventory Protecting the Environment During Armed Conflictargue for example that:
The overextraction and depletion of valuable natural resources has become an all too common feature of NIACs, with revenue generated from this often illegal exploitation serving to finance armed forces and their weaponry. Recent research shows that over the last twenty years, at least eighteen civil wars have been fuelled by natural resources such as diamonds, timber, minerals and cocoa, which have been exploited by armed groups in Liberia, Angola and the Democratic Republic of Congo, for example.
In view of those risks, some further questions spring up. Would the application of usufructuary on armed groups be applied consistently for all groups that control territories? Or should it be based on the “moral prerequisites” of the armed group, e.g. the general willingness of the insurgents to respect IHL, possibly conditioned by the existence of special agreements? Would the tolerance of rebel usufruct best be limited to situations characterised by certain socio-scientific criteria which reduce the risk of oppressive behavior e.g. situations in which rebels control territories with populations of their own religious or ethnic identity or have a high socio-economic dependency their population?
The conditions that Stewart himself places on the application are strict, meaning that it should be applied with great caution and only where the financial benefits are spent “exclusively on the humanitarian needs of the population.” There are two problems with this suggestion. Firstly, no empirical examples of this actually having taken place are given. Secondly, the exclusive funding of humanitarian need is a retrospective claim that can only be established by looking back and reviewing spending that has already taken place (i.e. there is no objective way of judging future spending intent, it can only be reviewed ex post-facto in a court or tribunal). Hence, lacking an actual guarantee of being able to extract resources with impunity (from legal review), an organized armed group might not feel that usufruct is a very powerful incentive to comply with IHL. Self-evidently, this is a risky practice at best with a lot more to wish for in terms of empirical bases for judgment.
Some final reflections
Conclusively, there are many reasons why anyone in the business of oil (whether as a smuggler or as part of a multinational corporation) should be dissuaded from dealing in Syrian (or any other) opposition oil. Courts and tribunals, while pressured by necessity to prioritize the severest cases, have been put to use in prosecuting individuals that pillage and loot. If the historic prevalence of pillage cases is not dissuasive, the inclination of local regional actors can be considered. Some regional actors are willing to pursue their economic interest in oil and sovereignty over the resource aggressively (see for example reports on Iraq’s appeal against alleged Turkish smuggling of Kurdish oil in the International Chamber of Commerce – here).
The jurisprudence of pillage seems to indicate that individual criminal liability may be incurred from merely trading in resources that finance continued violence, given that knowledge that the oil bought was pillaged may be enough to establish the required intent. Irrespective of the policy-arguments that may be voiced concerning the benefits of trading in the oil or the legitimacy of an opposition group, the legal motivations that these arguments can be translated into may have little traction as exceptions to criminal liability. Hence, the initial signals sent by the EU and US decisions may have purveyed potentially risk-laden messages to local smugglers and the corporate sector that trading in pillaged oil is acceptable (albeit with moderate factions of the opposition). As indicated by my earlier post (here), these are also considerations that ought to be made when lifting commodity sanctions on territories of intra-state conflict generally. The history of the law related to pillage and the role pillage plays in driving conflicts suggest there is a need to reconsider the approach towards it in Syria and Iraq as well.
Michael McGregor, ‘Memorandum for the Office of the Persecutor Special Court for Sierra Leone: ISSUE #6 Regarding State Owned Resources, or in the Alternative, Resources in which the State has the Primary or Superior Interest – Would Exploitation of such Resources Constitute Pillage as that Term is Defined in International Criminal Law and Would Such Conduct be a Crime against Humanity as it is a State Owned Resource or a Resource in which the State has the Primary of Superior Interest?  Case Western Reserve University
J. G. Stewart, ‘Corporate War Crimes’  Open Society Justice Initiative
 R. Bartels, ‘Discrepancies Between International Humanitarian Law on the Battlefield and in the Courtroom: The Chellenges of Applying International Humanitarian Law During International Criminal Trials’ in M. Mathee et al (eds), Armed conflict and International Law: In Search of the Human Face (1st, T.M.C Asser Press, The Hague 2013).
 Ibid, 357-358.
J. G. Stewart , Annex 1.
 J. G. Stewart  39-42
 J. G. Stewart,  29-32.
 McGregor  26.
 J. G. Stewart,  58-62.
 J. G. Stewart,  42-44
 Crawford J., The Rights of Peoples (1st, Oxford University Press, Oxford 1992) 171
 J. G. Stewart , 51.
 Ibid, 53, 58-61.
 UNEP , Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (Nairobi, Kenya: UNEP) 19.
 J. G. Stewart  60.