Seizure Of Natural Resources: Legal Framework

1. Introduction

Armed conflicts and campaigns of mass atrocity are often motivated and fuelled by access to resources. This connection between control over resources and conflict has been recognized by states, civil society and international institutions such as the United Nations (UN)¹ and the World Bank.² This link between conflicts and the resources that drive them can entrench conflicts, but it can also be a point of leverage to end them. States and civil society have sought to reduce the incentives for conflict by imposing sanctions on resources extracted from conflict zones and punishing the economic actors whose trade enables or profits from atrocities or other international crimes (see more in the Supply section of this Hub).³

Many of these responses focus on the seizure and exploitation of mineral resources (whether hydrocarbons, gems and precious metals, or industrial minerals) or, occasionally, of natural resources such as timber. However, the seizure of land (especially agriculturally-productive land) can also both drive conflict and be a feature of atrocity campaigns. Indeed, “land grabbing” is itself a serious issue affecting the environment, economy, social welfare and human rights.⁴ There are a handful of soft law instruments related to land grabbing,⁵ but it is typically not criminalized in and of itself. 

The Prosecutor of the International Criminal Court (ICC) has recognized the link between conflict and international crimes on the one hand, and the seizure of resources and land on the other. The Office of the Prosecutor stated in its 2016 Policy Paper on Case Selection and Prioritisation that “the Office will give particular consideration to prosecuting Rome Statute  crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”⁶ This policy is not limited to prosecuting illegal exploitation of resources or seizure of land as international crimes, but could encompass paying particular attention to other international crimes committed in conflicts driven by resources or land (as such conflicts tend to be particularly prolonged and entrenched). 

That said, there are a number of war crimes that may – in particular circumstances – apply to and criminalize the seizure or destruction of resources (including natural resources or land, as well as other forms of “property”), where that takes place in the context of an armed conflict (Rome Statute, Article 8(2)(a)(iv), (b)(xiii) or (e)(xii)). While those provisions use a slightly different terminology – “appropriation”, “seizure” and “pillage” – they cover substantively the same acts, and for the sake of simplicity we use the term “seizure” here to refer to all.

The seizure of property, resources or land often does not take place in a vacuum, but can form part of or be connected with other crimes. The seizure of property has often formed part of campaigns of persecution directed against a civilian population on account of a particular characteristic or identity, and thus may also constitute the crime against humanity of persecution (Rome Statute, Article 7(1)(h)). Seizure of land or resources can also lead to the forced displacement of populations, which can constitute a crime against humanity when that takes place as part of a widespread or systematic attack against a civilian population (Rome Statute, Article 7(1)(d); and may in some circumstances also amount to a war crime, Rome Statute, Articles 8(2)(a)(vi) and (e)(xiii)). 

The seizure and exploitation of land or other natural resources can also involve a range of other criminal activities discussed elsewhere in this Hub, including enabling or being facilitated by killings, environmental crimes or forced labour in the exploitation of the resources, or economic crimes such as corruption.

2. Pillage, Seizure or Destruction of Resources as a War Crime

The taking of property – whether labelled as “seizure”, “appropriation” or “pillage” – can constitute a war crime in an international or non-international armed conflict according to various provisions of the Rome Statute. The following acts are prohibited under the Statute: 

1. extensive appropriation of property protected under the Geneva Conventions, constituting a grave breach of those Conventions;⁷
2. seizing the enemy’s or adversary’s property;⁸ and 
3. pillaging a town or place.⁹

While this section will review each offence separately, as noted above, the core elements of taking property are common and thereafter the term “seizure” is used for simplicity to cover them all. Many of these provisions also cover the destruction of property of the enemy or hostile party, where protected under the rules of international humanitarian law. This is covered below only briefly as it is less applicable to the context of seizure of natural resources by corporate actors.

  2.1. Pillage as a war crime

“Pillaging a town or place, even when taken by assault” in an international or non-international armed conflict is a war crime under the Rome Statute.¹⁰ Property that can be pillaged includes public and private, moveable and immovable property.¹¹ This can also encompass natural resources.¹² The elements of the war crime of pillage are:

1. the perpetrator appropriated certain property;
2. the perpetrator intended to deprive the owner of the property and 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 (whether international or non-international in nature); and
5. the perpetrator was aware of factual circumstances that established the existence of an armed conflict.¹³

These requirements are generally consistent with the position under customary international law and prior practice. The one exception is the Rome Statute’s requirement that the taking be perpetrated for the pillager’s “private or personal use”, which is narrower than the position under customary international law and the laws of war, which only create an exception for taking for military purposes if it is for “military necessity.”¹⁴ 

    2.1.1. Physical elements

The perpetrator appropriated certain property

The perpetrator must have appropriated property. This may be accomplished through either direct or indirect appropriation. While domestic crimes in many countries distinguish between theft and receiving stolen property, this distinction does not affect the definition of pillage in relation to armed conflicts.¹⁵ 

Direct appropriation encompasses taking the property directly from the rightful owners. In the context of seizure of natural resources, this includes extracting natural resources and exercising or claiming control or ownership over them.¹⁶

Indirect appropriation includes purchasing or receiving stolen property from an intermediary and keeping it.¹⁷ For example, following World War II, a French military tribunal at Metz convicted a man named Willi Buch of pillage for purchasing illegally requisitioned silverware at an auction,¹⁸ and a couple and their two daughters were convicted for purchasing (in the couple’s case) and receiving (in the daughters’ case) stolen furniture and other property.¹⁹ As this case suggests, once evidence “of wrongful interference with property rights has been shown, it is not necessary to prove that the alleged wrongdoer was involved in the original wrongful appropriation.”²⁰ In principle, this approach could encompass the purchase of natural resources that had been extracted and appropriated, in the context of an armed conflict, without the consent of the government that had ownership of them – provided that the other mental elements (see below) were met. However, there are few examples of convictions for indirect appropriation, suggesting that cases predicated on this theory of appropriation are not as strong as lawsuits predicated on direct appropriation.

    2.1.2. Mental elements

Unless otherwise provided, Article 30(1) of the Rome Statute establishes that material elements of offences must be committed with “intent” and “knowledge”. Under Article 30(2), a person has intent where: (a) in relation to conduct, that person means to engage in the conduct; or (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Under Article 30(3), “knowledge” means awareness that a circumstance exists, or a consequence will occur in the ordinary course of events. “Know” and “knowingly” are construed accordingly. 

The perpetrator intended to deprive the owner of the property and appropriate it for private or personal use

This element contains two requirements: 

1. that the perpetrator intended to deprive the owner of the property, and 
2. the purpose of the deprivation was for private or personal use (which would exclude the taking of property for reasons justified by military necessity).

As to the first aspect, the perpetrator must have had the intent to appropriate or withhold the property in question from its owner. The level of knowledge or intent required depends on the jurisdiction in question. Some national jurisdictions require that an individual has a direct intent to take property in order to be held responsible for pillage, such as a business representative who “purposefully acquires natural resources knowing that the owner does not consent.”²¹ Other jurisdictions allow for both direct and indirect intent, also known as recklessness.²² In the context of pillage of natural resources, the standard of indirect intent might merely require awareness of a substantial risk or indifference to whether authorization had been granted to extract the resources; or, in the case of indirect appropriation, knowledge that property is likely to have been stolen or extracted without the consent of the legitimate owner.

As to the second aspect, whether appropriation amounts to pillage is shaped by both law and practice. Some appropriation is permissible in an armed conflict under international law. For example, the concept of pillage has traditionally excluded “usufruct” (the right to use resources for limited purposes short of destruction) and taking of property necessary to support the needs of an occupying army.²³ Some examples include food, stables and billets.²⁴ These traditional exclusions meant that taking property for military purposes was typically not viewed as pillage. However, in modern practice, these exceptions are narrowly applied.²⁵

The ICC Elements of Crimes appear to impose a slightly higher standard, requiring that any property be taken “for private or personal use” in order to constitute pillage. While a footnote to the Elements of Crimes makes it clear that this means “appropriations justified by military necessity cannot constitute the crime of pillaging”, this does not resolve the question of whether appropriations of property for a military purpose, but not strictly justified by military necessity, would constitute pillage (although the language of the Elements of Crimes, and the principle that crimes be strictly construed and ambiguities be resolved in favour of the accused, as per Rome Statute Article 22(2), suggests that they would not).

    2.1.3. Contextual elements

The appropriation was without the consent of the owner

Pillage first requires that the owner of the property did not consent to the appropriation. To determine whether the rightful owner consented, a court must ascertain, among other things, the ownership of the property in question. Courts draw on national law about the ownership of natural resources, constitutional principles, and property law to determine ownership.²⁶ The relevance of the doctrine of permanent sovereignty over natural resources is disputed in adjudicating claims of pillage.²⁷ This requires courts to ascertain the legitimate government ownership and control in contested regions.²⁸ Where the governing authority is disputed or land is occupied, the army with territorial control must still respect the rights of the people to the land. 

Where the extraction or harvesting of natural resources takes place without any form of consent or licence from the legitimate authorities, this element may be fairly straightforward. However, there may be circumstances in which it is more complicated: on the one hand, where there was tacit approval or acquiescence from local authorities, though without formal approval from national authorities; or where approval for extraction had been granted but the company in question took more than had been authorized.

  2.2. Appropriation or seizure of property as a war crime

A series of offences criminalize the appropriation or seizure of property in armed conflicts (or its destruction, as noted below in part 2.3):

• Article 8(2)(a)(iv), criminalizing extensive appropriation of property protected by the Geneva Conventions, in an international armed conflict;
• Article 8(2)(b)(xiii), criminalizing the seizing of property of the enemy in an international armed conflict; and 
• Article 8(2)(e)(xii), criminalizing the seizing of property of an adversary in the same terms, though in a non-international armed conflict.

Similar to the pillage offences above, that appropriation or seizure of property can apply to natural resources, in certain contexts. 

The common elements to these war crimes of appropriation and seizure are: 

1. the perpetrator appropriated or seized certain property.
2. the property was protected from appropriation or seizure under the international law of armed conflict.
3. the perpetrator was aware of the factual circumstances that established that protected status.
4. the appropriation or seizure was not justified by military necessity. 
5. the conduct took place in the context of and was associated with an international or non-international armed conflict.
6. the perpetrator was aware of factual circumstances that established the existence of an armed conflict.²⁹

The primary distinction between the various offences is that Article 8(2)(a)(iv) of the Rome Statute, drawn from the grave breaches of the Geneva Conventions,³⁰ also requires that the appropriation be “extensive and carried out wantonly.”³¹ Meanwhile, the war crimes under Articles 8(2)(b)(xiii) and 8(2)(e)(xii), drawn from customary law applicable in armed conflict, omit that element. 

    2.2.1. Physical elements

The perpetrator appropriated or seized property 

Appropriation includes “taking, obtaining, or withholding property, theft, requisition, plunder, spoilation, or pillage.”³² Seizure requires the “removal of something from the possession of an entitled person, for not an insignificant period of time, and against the person’s will or without [their] agreement.”³³ The two terms are often used synonymously.³⁴ It is unclear if a single instance of appropriation or seizure of property is sufficient for this crime.³⁵

Seizure and appropriation can also apply to immovable property – in other words, real estate (although there may be limited exceptions for states engaged in an international armed conflict to administer the immovable property of an enemy, rather than to seize or confiscate it). As with pillage, extracting natural resources and exercising control or ownership over them by exporting, selling or trading those resources would likely satisfy this requirement for the appropriation or seizure of property. 

The appropriation or seizure was not justified by military necessity

For conduct to be justified by military necessity, it must be lawful according to the laws and customs of war. Military necessity is determined based on the information available to the perpetrator when they appropriate property and without the benefit of hindsight.³⁶

What is lawful under these laws and customs depends in part on the property at issue. For example, Article 57 of the Fourth Geneva Convention does not permit an Occupying Power to requisition (or seize) civilian hospitals unless:

1. the requisition is temporary;
2. the requisition is urgently needed for caring for the wounded and sick in the Occupying Power’s military; and
3. suitable arrangements are made in a reasonable time for the care and treatment of patients and the broader medical needs of the civilian population (protected persons).³⁷

Thus, military necessity may not be used to justify the seizure of civilian hospitals unless the three conditions outlined above are met. 

The protections for certain property under the laws and customs of war may be so strong in some instances that they exclude the possibility of invoking the military necessity exception.³⁸ The prohibition on seizure of property under Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute apply when the seizure was not “imperatively demanded by the necessities of war.”³⁹ Scholars disagree over whether the element regarding the military necessity exception for this war crime should be interpreted more restrictively in light of the term “imperatively”.⁴⁰ The ICC appears to restrict the military necessity exception because of such language. 

Following the approach of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Kordić & Čerkez, the ICC adopted the definition of “military necessity” found under Article 14 of the Lieber Code of 1863:⁴¹ “the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”⁴² Interpreting the exception for destruction of property in a non-international armed conflict that is “imperatively demanded by the necessities of conflict,” the ICC noted that “only ‘imperative’ reasons of military necessity, where the perpetrator has no other option in this regard, could justify acts of destruction which would otherwise be proscribed” (emphasis added).⁴³

While seizure or destruction of specific property by an armed group will often require detailed examination and argument over whether that was justified by military necessity, the circumstances in which the seizure or appropriation of natural resources by a corporation could be justified by “military necessity” are more difficult to envisage.

The appropriation was extensive

This element applies solely to the war crime under Article 8(2)(a)(iv) of the Rome Statute regarding extensive appropriation of property as a grave breach of the Geneva Conventions. The determination of whether an act of appropriation of property is extensive is decided according to the facts of each case.⁴⁴ An isolated act of destruction would typically be insufficient for the act to be considered extensive under the Rome Statute.⁴⁵

    2.2.2. Contextual elements

In addition to the general contextual elements applicable to all war crimes (that they be committed in the context of and associated with an armed conflict, and that the perpetrator be aware of those circumstances), the crimes of seizing or appropriating property also require that the property must be protected by the Geneva Conventions or another source of law applicable in armed conflict. Article 8(2)(a)(iv) requires that the property be “protected under one or more of the Geneva Conventions of 1949”, and Articles 8(2)(b)(xiii) and (e)(xii) require that the property belongs to an enemy or adversary to the armed conflict and that it be protected from destruction or seizure under the international law of armed conflict.

Such property belonged to an enemy or adversary

Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute require that the seized property belongs to an “enemy” or “adversary”⁴⁶ – war crimes typically do not regulate the confiscation, seizure or appropriation of the property of the population that an armed force represents or is aligned with. With respect to identical language for the war crimes of destruction of property, the ICC has held that “this means that the property in question – whether moveable or immoveable, private or public – must belong to individuals or entities aligned with or with allegiance to a party to the conflict adverse or hostile to the perpetrator.”⁴⁷ This element may be established in light of the ethnicity or place of residence of such persons.⁴⁸ However, this excludes the property of the perpetrator or third states not involved in the conflict.⁴⁹

Article 8(2)(a)(iv) does not include this as a separate element, but the requirement that the property be “protected under one or more of the Geneva Conventions of 1949” carries a similar effect as it would exclude property belonging to the same state, or to nationals of the same state, as the perpetrator in an international armed conflict.⁵⁰

The property was protected under the law of armed conflict

In addition, the property must be protected from appropriation or seizure – a requirement that applies most readily to civilian objects, which are to be distinguished from “military objectives.”⁵¹ According to Additional Protocol I to the Geneva Conventions, military objectives “are objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”⁵² The ICC has noted that civilian objects are not protected for the duration of time they serve as military objectives.⁵³  Military advantage should be assessed from the perpetrator’s perspective for each targeted object, and this “advantage must be definite and cannot in any way be indeterminate or potential.”⁵⁴

    2.2.3. Mental elements
Unless otherwise provided, Article 30(1) of the Rome Statute establishes that material elements of offences must be committed with “intent” and “knowledge” – as elaborated above and in the Defined Terms section of this Hub. 

The appropriation was carried out wantonly

Scholars disagree about whether the default mental state from Article 30 applies to the extensive appropriation of property under Article 8(2)(a)(iv) because it specifically covers conduct carried out “wantonly”.⁵⁵ According to jurisprudence for an analogous provision under the ICTY Statute, the ICTY held the mental state for the appropriation of property under this war crime requires that “the perpetrator must have acted intentionally, with knowledge and will of the proscribed result.⁵⁶

The perpetrator was aware of the factual circumstances that established the protected status of the property

The perpetrator must be aware of the factual circumstances that establish the protected status of the property under the laws of armed conflict, but it is not required that the perpetrator know that those circumstances render the property protected.⁵⁷ The latter aspect has been expressly affirmed by the ICC in the case of Katanga,⁵⁸ albeit in a case regarding destruction rather than appropriation of property. The Trial Chamber held that it was not necessary “that the perpetrator had concluded, following assessment of the situation, that the property was effectively protected from destruction under international humanitarian law.”

  2.3. Destruction of property as a war crime

The Rome Statute provisions that criminalize appropriation or seizure of property also criminalize, in the same provision and under the same conditions, destruction of property.⁵⁹ In practical terms, cases involving corporations and natural resources or land are much more likely to involve the appropriation or seizure of natural resources than their destruction. However, in principle there is no reason that these offences could not be applied to the destruction of natural resources (for example, the burning of oil wells).

The offences apply in exactly the same way, except that they require the destruction of property rather than its appropriation or seizure (all of the other requirements remain the same, including the link to the armed conflict; the requirements of protected status of the property; and, for the Grave Breaches offence, that the destruction be “extensive and carried out wantonly”). The Rome Statute does not limit the means by which property may be destroyed: commentaries suggest that destruction of property includes setting on fire, pulling down, demolishing or otherwise damaging objects.⁶⁰ Partial destruction of property may also be sufficient to constitute destruction of property.⁶¹

The application of the default mental elements (Article 30(1) of the Rome Statute, that material elements of offences must be committed with “intent” and “knowledge”) means that this offence covers intentional destruction of property, not destruction incidental to military operations (a separate offence addresses damage to civilian objects that is disproportionate to the military advantage anticipated, albeit only in an international armed conflict).

  2.4. Contextual elements common to the war crimes of pillage, seizure and destruction

The conduct took place in the context of and was associated with an armed conflict (international or non-international)

This first contextual element, generally known as the “nexus” requirement, aims at differentiating war crimes from “ordinary” offences by linking the crime to an armed conflict. The offences above apply to, and thus require proof of, different types of armed conflicts: Articles 8(2)(a)(iv) and 8(2)(b)(xiii) require an international armed conflict; while Article 8(2)(e)(xii) requires an “armed conflict not of an international character” (or non-international armed conflict). The definition and criteria for establishing these are detailed in the Defined Terms section of this Hub.

In addition to the armed conflict existing, the appropriation or seizure or destruction must also be connected with that conflict; it must be committed “in the context of and associated with” that armed conflict. This does not necessarily require that the armed conflict caused the crime or that the crime occurred in the midst of armed conflict. Rather, “the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”⁶²

A number of factors detailed in the Defined Terms section can be taken into account to determine whether an offence has a sufficiently close nexus to the armed conflict.⁶³ While the status of the defendant as a combatant is one factor, this nexus requirement may also be met through the actions of non-combatants, including corporations, where they have collaborated with combatants, secured commodities only available through the conflict, or otherwise have access to resources they would not have outside the conditions of conflict.⁶⁴ This does not mean that a company has to participate in hostilities or support or endorse a particular side.⁶⁵

The perpetrator was aware of the factual circumstances that established the existence of an armed conflict

It must also be shown that the accused was aware of the factual circumstances that established the existence of an armed conflict. As with the knowledge of the protected status of the property, there is no requirement that the accused legally determine the existence of an armed conflict or its character as international or non-international.⁶⁶ Therefore, for this element to be satisfied, only some form of knowledge of the existence of an armed conflict is required from the side of the accused. This element is generally easy to establish since it is hard to imagine a situation where there is a nexus between the crime and the armed conflict, but the perpetrator is unaware of the factual circumstances that establish such a conflict.⁶⁷

3. Seizure of Resources in Context: Persecution, Displacement and Related Offences

In addition to the circumstances above where the seizure or destruction of resources in armed conflict may constitute a war crime in its own right, the seizure of natural resources or land often does not occur in isolation, but may be linked with other crimes. 

In the context of mass atrocities, a particular group may be targeted for the seizure of property or other resources as part of a wider campaign of persecution of that group, and can thus also constitute the crime against humanity of persecution.

Seizure may also cause the forcible displacement of a population (whether as the intended purpose or a natural consequence): forced transfers of population might be committed to clear the way for the exploitation of natural resources; or land seizure may leave a population with little or no choice but to flee. Where this takes place in the context of a widespread or systematic attack against that civilian population during an international armed conflict, then it may also constitute a crime against humanity or war crime relating to forcible or unlawful transfer.

Finally, the seizure of resources may be connected with other crimes: killings, disappearances or inhumane treatment as part of the seizure of resources or land; forced labour in the exploitation of resources; corruption to secure access to resources in regions with weak governance; or violations of sanctions when exploiting resources during ongoing conflicts.

  3.1. Persecution as a crime against humanity

Persecution can amount to a crime against humanity under Article 7(1)(h) of the Rome Statute, which refers to “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender… or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” The elements of the crime of persecution are that:

1. the perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights; 
2. the perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such; 
3. such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in Article 7(3) of the Statute, or other grounds that are universally recognized as impermissible under international law;
4. the conduct was committed in connection with any act referred to in Article 7(1) of the Statute or any crime within the jurisdiction of the ICC;
5. the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and 
6. the accused knew that the conduct was part of a widespread or systematic attack directed against a civilian population.⁶⁸

    3.1.1. Physical elements

The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights

To satisfy this requirement, the evidence must prove that: 

1. one or more persons were deprived of their fundamental rights; and 
2. that this deprivation was severe. 

Fundamental rights are generally understood to mean human rights established under international law.⁶⁹ At a minimum, this can be taken as a reference to internationally recognized human rights within the Universal Declaration on Human Rights; the International Covenant on Civil and Political Rights (ICCPR); and the International Covenant on Economic, Social and Cultural Rights.⁷⁰ 

Persecutory acts may include both actions and omissions.⁷¹ There is no comprehensive list of acts that may constitute persecution. In principle, the first element of Article 7(1)(h) therefore potentially encompasses a very wide range of human rights violations, as long as those violations are severe. Severity depends upon the nature or extent of the conduct in question,⁷² but will ordinarily include violations that are gross and blatant enough to amount to a crime against humanity. For instance, with regard to the right to food, it must be established that the deprivation was such that the victims were left without enough food to survive. 

The conduct was committed in connection with any act referred to in Article 7(1) of the Rome Statute or any crime within the jurisdiction of the ICC

This second physical element is demonstrated if a connection can be shown between the conduct of the perpetrator and another act enumerated in Article 7(1) of the Rome Statute that constitutes a crime against humanity, or within the jurisdiction of the ICC, namely crimes of genocide, war crimes or aggression. This connection can be established if the conduct of the perpetrator is in itself a crime under the Rome Statute, or if the crime committed is carried out in connection with such a crime.⁷³ This might be the case, for example, if the right to freedom of assembly is restricted for demonstrators protesting against starvation for another group (for example, detainees in a detention centre), meaning the crime (severe deprivation of freedom of assembly) is committed in connection with ill-treatment (starvation of detainees), rendering it persecutory.⁷⁴

    3.1.2. Mental elements

Under the Rome Statute, the crime of persecution requires two specific mental elements to be satisfied, as well as the generic mental element pursuant to Article 30 (that the crime was committed with intent and knowledge).⁷⁵ These two specific mental elements are that:

• the perpetrator targeted such a person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such; and
• targeting was based on political, racial, national, ethnic, cultural, religious or gender (or other grounds impermissible under international law).

The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such

For this first element to be satisfied, the perpetrator must have targeted either (i) a group or collectivity due to its identity, or (ii) specific individuals due to their belonging to a group or collectivity. Nevertheless, both the individual members and the group/collectivity must be identifiable either through objective criteria (the existence of a group) or in the subjective beliefs of the perpetrator.⁷⁶ As such, what matters is not whether the victims actually belonged to the group or collectivity, but how the perpetrator perceived them. 

Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in Article 7(3) of the Rome Statute, or other grounds that are universally recognized as impermissible under international law

To establish this element, evidence should be provided to demonstrate that the perpetrator discriminated against the victims based on the following grounds: 

• political (refers to political or ideological beliefs or support or belonging to a political party or regime);⁷⁷
• racial (refers to hereditary physical traits often identified within a geographic region, irrespective of linguistic, cultural or national factors);⁷⁸
• national (refers to citizenship of a state—recognized by a country’s constitution, laws or the international community—⁷⁹ as well as other common characteristics—such as language, origins, culture, ethnicity and so on-—even if the members of the group are located in more than one state);⁸⁰
• ethnic (refers to linguistic, cultural, racial or tribal backgrounds as well as traditional links to land);⁸¹
• cultural (refers to customs, social institutions or traditions);⁸²
• religious (refers to religious affiliations or failure to adhere to certain religious beliefs);⁸³ 
• gender (refers to the male or female gender of the victim);⁸⁴ and
• other grounds recognized as impermissible under international law (generally refers to age, sexual orientation, economic or social status, disability or any similar grounds).⁸⁵

This list is non-exhaustive and other grounds may be covered by this crime, such as social and/or economic groups.⁸⁶ Further, no proof is needed that the victim did in fact belong to one of these groups, as long as it is demonstrated that the reason why the perpetrator targeted the victim was based on one of these prohibited grounds. 

    3.1.3. Contextual elements common to crimes against humanity

Any persecution must have been committed as part of a widespread or systematic attack against the civilian population, pursuant to an organizational policy to commit that attack, and with the knowledge or intent that it formed part of the attack. 

In principle, these elements apply in the same way as set out above. However, this particular crime requires proof that the persecutory acts were carried out in conjunction with at least one other act constituting a crime against humanity (or another crime under the Rome Statute), and that they were targeted at a group based on specific characteristics.

  3.2. Transfer of population as a crime against humanity

Deportation or forcible transfer of population is criminalized in Article 7(1)(d) of the Rome Statute, which defines it as the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds recognized under international law.”⁸⁷ The elements of the crime are that:

1. the perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another state or location, by expulsion or other coercive acts;
2. such a person or persons were lawfully present in the area from which they were deported or transferred;
3. the perpetrator was aware of the factual circumstances that established the lawfulness of such presence; 
4. the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and
5. the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.⁸⁸

    3.2.1. Physical elements

The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another state or location, by expulsion or other coercive acts

For this element to be satisfied, three requirements need to be proven: 

1. one or more persons were deported or transferred to another state or another location; 
2. such deportation or transfer was carried out forcibly; and 
3. the deportation or transfer was unlawful under international law. 

To establish that there was a deportation or transfer, it must be shown that victim(s) were expelled outside the borders of a state (thus falling within the definition of deportation) or moved from the area where they reside to another location (thus falling within the definition of transfer).

To show that such transfer or deportation was “forcible”, it must be established that the victim(s) were displaced from their place of residence against their will by the perpetrator. Key in this regard is whether the victim genuinely wished to leave the place of residence or, on the contrary, was left with no real choice due to the conduct of the perpetrator.⁸⁹ A range of coercive acts or circumstances might indicate that the victim’s transfer or deportation was forcible. These include: 

• physical violence used by a perpetrator in deporting or transferring the victim; 
• other forms of coercion including threats of violence, duress, detention, psychological oppression or abuse of power that led to the forcible removal of the victim; 
• a coercive environment and/or untenable living conditions created by the perpetrator(s) (an environment where there is no choice but to leave, caused by fear of violence, duress, detention, psychological oppression, and so on),⁹⁰ generated through, for example, killings, destruction of homes, imprisonment and ill-treatment; and/or 
• the destruction of objects such as food, livestock, water sources or shelter.⁹¹

It is likely that the confiscation of lands and property could in certain circumstances amount to coercive acts that would render the consequential “transfer” of the population that had had its lands seized as “forcible”, although this scenario has not yet come before the courts. 

Lastly, to demonstrate that the deportation or transfer was unlawful under international law, it must be shown that there were no lawful reasons for the transfer. Under international humanitarian law, for example, lawful reasons for a transfer or deportation include: 

• security reasons, such as the evacuation of civilians from an area expected to be attacked; 
• imperative military reasons, such as removing civilians from an area where there are active hostilities between the adversaries; or 
• humanitarian reasons, such as evacuation of civilians in cases of epidemics, famine or natural disasters.⁹²

Similarly, under international human rights law, an individual may be deported or transferred if doing so is necessary for the protection of national security, public order, health or morals, or rights and freedoms of others.⁹³ However, even if the deportation or transfer can be justified under these circumstances, in accordance with international law, the displaced persons must still be returned to their homes as soon as the reasons justifying their lawful displacement cease to exist.⁹⁴ Moreover, such reasons are based on public functions such as maintenance of public order or national security, and in practice are less likely to be available as a defence to forcible transfers that result from corporate (as opposed to state) action.

Such a person or persons were lawfully present in the area from which they were deported or transferred

This element is satisfied when the victims being deported or forcefully transferred are, pursuant to international law, lawfully present in the said geographic location.⁹⁵ As a result, it is irrelevant if the deportation or forcible transfer is lawful under domestic laws. Similarly, proving the legality of victims’ residency in a territory is not required. Lawful presence refers to inhabitants or residents of an area who came to live or shelter in a community – whether in the short or long term.⁹⁶

    3.2.2. Mental elements

The perpetrator was aware of the factual circumstances that established the lawfulness of such presence

The mental elements that must be established in relation to crimes against humanity are set out in Article 30 of the Rome Statute. A person is criminally liable if each material element is committed with intent and knowledge.
It needs to be established that the perpetrator was aware of the factual circumstances that established the lawfulness of the presence of one or more persons. There is no need to demonstrate that the perpetrator made any legal determination concerning the lawfulness of the victim’s presence or was aware that it was lawful.⁹⁷

    3.2.3. Contextual elements common to crimes against humanity
In order to satisfy the contextual elements of crimes against humanity, it must be shown that the crime was committed as part of a “widespread or systematic attack against a civilian population”,⁹⁸ and that the accused knew or intended the conduct to be part of that attack.

The conduct was committed as part of a widespread or systematic attack directed against a civilian population

In order to establish this sub-element, four things must be shown:

1. there was an attack against a civilian population comprising the multiple commission of criminal acts referred to in Article 7(1).⁹⁹ These acts do not necessarily have to be of a military nature, or encompass violence carried out in the form of an operation.¹⁰⁰ Further, the attack must primarily target civilians.¹⁰¹
2. the attack was “widespread or systematic”. The criteria that may be considered to establish whether an attack was “widespread or systematic” are set out in more detail in the Defined Terms section of this Hub, but in general “widespread” typically refers to showing that the attack was large-scale¹⁰² (in the number of acts, the resources used, the number of victims, or its impact), while “systematic” refers to the means or level of organization (the pattern of conduct, coordination, planning and methods used).
3. the attack was deliberately committed pursuant to, or in furtherance of, a state or organizational policy. The inclusion of “organizational policy” means that this can include a policy of a non-state actor, where it has the capability to perform acts that infringe basic human values, such as “purely” private criminal organizations or a private individual with de facto powers,¹⁰³ and potentially a corporation in certain circumstances. Factors that can demonstrate the existence of such a policy, and whether a non-state group qualifies as an “organization” capable of issuing such a policy, are set out in more detail in the Defined Terms section of this Hub. But factors indicating deliberate preparation for the attack (including identifying targets in advance, allocation of resources, meetings, public statements, and a consistent pattern of attacks)¹⁰⁴ can all be evidence that the attacks were committed pursuant to a policy, rather than being random, spontaneous or isolated acts.
4. the individual conduct was committed as part of the attack; meaning that the act was similar in nature, aim and consequence to the other acts committed during the attack on the civilian population.¹⁰⁵

Considering these last two requirements in particular, when examining the responsibility of a corporation (or corporate officers) for crimes against humanity, it is important to distinguish between situations in which the allegation is that: 

• the corporation’s acts amount to an attack against the civilian population pursuant to the organizational policy of that corporation; or
• the corporation’s acts amount to crimes that were committed as part of a wider attack against a civilian population that was being conducted pursuant to the policy of a state or other organization (such as a non-state armed group). 

The accused knew or intended for the conduct to be part of a widespread or systematic attack against the civilian population 

It must also be shown that the accused knowingly participated in a widespread or systematic attack directed against a civilian population.¹⁰⁶ Knowledge of all the characteristics of the attack or the policy of the organization is not necessary.¹⁰⁷

  3.3. Forcible transfer as a war crime

Unlawful deportation and transfer are listed as a war crime in the context of an international armed conflict in Article 8(2)(a)(vii) of the Rome Statute (which also criminalizes unlawful confinement). The elements of the crime are that:

1. the perpetrator deported or transferred one or more persons to another state or location; 
2. such a person or persons were protected under one or more of the Geneva Conventions of 1949; 
3. the perpetrator was aware of the factual circumstances that established that protected status; 
4. the conduct took place in the context of and was associated with an international armed conflict; and 
5. the perpetrator was aware of factual circumstances that established the existence of an armed conflict.¹⁰⁸

    3.3.1. Physical elements

The perpetrator deported or transferred one or more persons to another state or to another location

This requirement is functionally the same as the analogous requirement for the crime against humanity of the deportation or forcible transfer of population. As with the element that the “perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another state or location, by expulsion or other coercive acts”, three requirements need to be proven: (i) one or more persons were deported or transferred to another state or another location; (ii) such deportation or transfer was carried out forcibly; and (iii) the deportation or transfer was unlawful under international law. 

Each of these requirements has been discussed in more detail above, but in short it must be shown that:

• victim(s) were expelled outside the borders of a state or moved from the area where they reside to another location.
• victim(s) were displaced against their will by the perpetrator. Key in this regard is whether the victim genuinely wished to leave the place of residence or, on the contrary, was left with no real choice due to the conduct of the perpetrator (including by considering a range of coercive acts or circumstances that might indicate that the victims’ transfer or deportation was forcible). 
• there were no lawful reasons for the transfer. For example, under international humanitarian law, transfers of civilians may be required in certain circumstances for security, imperative military or humanitarian reasons. 

Such persons were protected under one or more of the Geneva Conventions of 1949

“Unlawful deportation and transfer” are only listed as war crimes for conflicts of an international character. As a result, victims must qualify as a protected person under the Geneva Convention. For the purposes of offences such as deportation or forcible transfer, the most relevant category of protected persons pursuant to the Geneva Conventions are civilians who: 

• do not participate actively in the hostilities; 
• find themselves in the power of a party to the armed conflict whose nationality they do not possess¹⁰⁹ (the status also applies to sick, wounded and shipwrecked members of the armed forces who have ceased to take part in hostilities; prisoners of war and other detained persons; medical and religious personnel; civil defence personnel; and personnel assigned to the protection of cultural property).¹¹⁰

    3.3.2. Mental elements

The perpetrator was aware of the factual circumstances that established that protected status

For this mental element to be satisfied, it must be demonstrated that the perpetrator was aware of the factual circumstances that established the protected status of the victim under international humanitarian law. It is not necessary for the perpetrator to have made a legal assessment of whether the victim was a protected person. Similarly, knowledge of the nationality of the victim is not required, as long as the perpetrator knew that s/he belonged to an adverse party.¹¹¹

To establish the war crime of unlawful deportation and transfer, the evidence will also have to demonstrate that the crime was committed with intent and knowledge pursuant to Article 30 of the Rome Statute. Evidence in this sense will have to demonstrate either that the perpetrator meant to deport or transfer one or more persons to another state, or that the perpetrator was aware that his/her conduct would almost certainly cause the deportation or transfer of one or more persons to another state or another location.¹¹²

    3.3.3. Contextual elements common to war crimes

Two requirements need to be satisfied in order for unlawful deportation or transfer to amount to a war crime – that the conduct took place in the context of and was associated with an international armed conflict. There is no war crime of forced displacement in a non-international armed conflict; instead, that is limited to orders to displace a civilian population (see below), and that the perpetrator was aware of the factual circumstances establishing the existence of an armed conflict.

The conduct took place in the context of and was associated with an international armed conflict

This first contextual element, generally known as the “nexus” requirement, aims at differentiating war crimes from “ordinary” offences, by proving the existence of a connection between the crime to the armed conflict. Two requirements need to be satisfied, namely that:

1. an international armed conflict is taking place, and 
2. the crime was committed “in the context of and associated with” that armed conflict.

The perpetrator was aware of factual circumstances that established the existence of an armed conflict

The second contextual element requires the prosecutor to show that the accused was aware of the factual circumstances that established the existence of an armed conflict. This is satisfied as long as the accused possesses some form of knowledge of the existence of the armed conflict and does not require a legal evaluation as to the existence of the conflict or of its character (whether it is an international or non-international armed conflict). 

The requirements for each of these elements is described above, and in detail in the Defined Terms section.

  3.4. Ordering displacement of the civilian population as a war crime

Unlike in an international armed conflict, where forced transfer of civilians can be a war crime, the displacement of civilians in non-international armed conflicts is criminalized in a much narrower circumstance – only where the defendant has ordered the displacement of that civilian population. In practice, this requirement is likely to limit the application of this war crime in the context of corporate conduct linked with the seizure or exploitation of resources with a nexus to a non-international armed conflict.

Article 8(2)(e)(viii) of the Rome Statute defines the crime as “ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative security reasons so demand.” Following the ICC Elements of Crimes, several elements need to be satisfied for an offence to amount to the war crime of displacing civilians: 

1. the perpetrator ordered a displacement of a civilian population; 
2. the order was not justified by the security of the civilians involved or by military necessity; 
3. the perpetrator was in a position to effect such displacement by giving the order;
4. the conduct took place in the context of and was associated with an armed conflict, not in the context of an international armed conflict;
5. the perpetrator was aware of factual circumstances that established the existence of an armed conflict.¹¹³

Each of these elements needs to be satisfied individually.

    3.4.1. Physical elements

The perpetrator ordered a displacement of a civilian population

This first element requires practitioners to demonstrate that: 

1. the perpetrator ordered a displacement; and 
2. that the target of the displacement was a civilian population. 

To show the issuance of an order of displacement, the order must have been explicit.¹¹⁴ It does not need to have been in writing or made publicly to the civilian population, and can be made within the political or military chain of command.¹¹⁵ Nonetheless, this requirement for an explicit order means that this offence will be more difficult to satisfy when addressing corporate responsibility linked with the seizure or exploitation of natural resources in the context of non-international armed conflicts, compared with the responsibility of government or military officials, or members of non-state armed groups that exercise de facto control over territory.

The term “displacement” includes displacement both within and outside the territory of a state, and can be the result of evictions or other conduct that coerces victims to leave their homes – for example, attacking or shelling civilians or setting their houses on fire,¹¹⁶ or depriving objects indispensable for the survival of civilians. 

In addition, it must be shown that the target of the displacement was a “civilian population”. The use of this term, as opposed to “civilians”, requires a certain number of civilians, considered numerous enough to constitute a population, as opposed to a limited number of randomly selected individuals.¹¹⁷ The relevant population should be comprised predominantly of civilians, as opposed to members of armed forces or other combatants,¹¹⁸ even though the presence of some non-civilians within the population does not change its civilian character.¹¹⁹

Such order was not justified by the security of the civilians involved or by military necessity 

The second element requires practitioners to show that the order was unlawful under international law. To demonstrate that the deportation or transfer was unlawful under international law, it must be shown that there were no lawful reasons for the transfer. Similar to the discussion above, under international humanitarian law,¹²⁰ lawful reasons for a transfer or deportation include: 

• security reasons, such as the evacuation of civilians from an area expected to be attacked; 
• imperative military reasons, such as removing civilians from an area where there are active hostilities between the adversaries; or 
• humanitarian reasons, such as evacuation of civilians in cases of epidemics, famine or natural disasters.¹²¹

However, it should be noted that even if the deportation or transfer can be justified under these circumstances, in accordance with international law, the displaced persons must still be returned to their homes as soon as the reasons justifying their lawful displacement cease to exist.¹²²

The perpetrator was in a position to effect such displacement by giving the order

Finally, it must be shown that the perpetrator had the authority, power, resources or means to effect the displacement of a civilian population.¹²³ In addition, it should also be shown that civilians were actually displaced as a result of the perpetrator’s order.¹²⁴ Once again, this element is likely to make it difficult to apply this offence in the prosecution of corporate misconduct.

    3.4.2. Mental elements

The perpetrator committed the physical elements of the crime with intent and knowledge

To establish the war crime of displacement of civilians, the evidence will also have to demonstrate that the crime was committed with intent and knowledge pursuant to Article 30 of the Rome Statute. Evidence in this sense will have to show either that the perpetrator meant to displace a civilian population, or that the perpetrator was aware that his/her conduct would almost certainly cause the displacement of a civilian population.¹²⁵

    3.4.3. Contextual elements common to war crimes

Two contextual requirements need to be satisfied in order for an unlawful displacement to amount to a war crime, namely that the conduct took place in the context of and was associated with a non-international armed conflict, and that the perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

The conduct took place in the context of and was associated with an armed conflict not of an international character

To establish this first contextual element, two requirements need to be satisfied, namely that:

1. a non-international armed conflict is taking place, and 
2. the crime was committed “in the context of and associated with” that armed conflict. 

The requirements for each of these elements are described above and detailed in the Defined Terms section of this Hub.

The perpetrator was aware of factual circumstances that established the existence of an armed conflict

The second contextual element requires the prosecutor to show that the accused was aware of the factual circumstances that established the existence of an armed conflict. This is satisfied as long as the accused possesses some form of knowledge of the existence of the armed conflict, and does not require for a legal evaluation as to the existence of the conflict or of its character (whether it is an international or non-international armed conflict).

  3.5. Other crimes in the context of seizure and exploitation of natural resources

A range of other crimes covered in this Hub may often take place in the context of the seizure and exploitation of natural resources.

For example, gaining access to land and resources, especially in countries where the security situation is fragile or the government is autocratic, has often been linked with and facilitated by violence against local communities or leaders who have traditionally used that land and who object to its seizure or the exploitation of the resources. These risks are amplified when a company is operating in a region where there is an ongoing armed conflict or a campaign of attacks against a civilian population.

Gaining and maintaining physical access to the resources in such contexts may involve the commission of other crimes, including killings, ill-treatment or enforced disappearances.

Depending on the relationship between the corporation and the government or security forces, and the corporation’s knowledge of the crimes or the likelihood that they would be committed, the corporation may be complicit in those crimes. For example:

• Senior executives of the oil company Lundin Energy face charges of complicity in war crimes that were committed by the Sudanese forces in order to secure access to specific locations where Lundin was extracting oil in South Sudan in 1999-2003. 
• Employees from Anvil mining were prosecuted (although acquitted) for lending equipment, including trucks and aircraft, to army forces in the Democratic Republic of the Congo (DRC) who used that equipment in military operations that led to a massacre of civilians in a nearby town.

Gaining access to natural resources in such environments – where governance structures are fragile or informal armed groups are operating – may also raise the risks of corruption. For example: 

• The UsS government imposed sanctions under the Global Magnitsky Act (and associated Executive Orders) on Dan Gertler and a network of associates and over 30 companies due to “opaque and corrupt mining and oil deals in the [DRC]”.¹²⁶

The trading of resources extracted in conflict zones may also violate other specific sanctions regimes, such as those that governed the trade of “blood diamonds” during the civil war in Sierra Leone; or may amount to the commission of financial offences such as money laundering. For example: 

• The Belgian gold trader Alain Goetz was convicted of money laundering and fraud¹²⁷ as a result of trading gold from regions of eastern DRC controlled by armed groups. Given that this trade was a major source of revenue to militia groups that engaged in atrocities, including massacres and rape, Alain Goetz and his companies were also subjected to sanctions.

The exploitation of natural resources in such environments may also involve a heightened risk of offences related to forced or child labour or the commission of environmental crimes (given the likely weakness and lack of enforcement of environmental or labour regulations in such contexts).