1. Introduction
Access to and distribution of traded natural resources have been, since time immemorable, at the root of violent conflict. One may think of how the high demand for spices in Europe (i.e., pepper, cinnamon, nutmeg, cloves) paved the way not only for exploration and trade-related globalization but also for conquest, wars, and colonial empires.Footnote 1 Yet, it is only over the last few decades that international institutions and legal scholars started to pay attention to the dangerous liaison between resource commodities and wars. To date, debates have largely focused on the possibilities and limitations of legal regimes and institutional arrangements to break that linkage and ensure that natural resources are ‘managed’ in ways that foster peace, sustainable development, and stability.Footnote 2 This article intervenes in existing legal discussions, but it pursues a different objective. It aims to understand the emergence of legal practices addressing the resource–conflict nexus by making visible the theories that shape international law’s engagement with the issue, their assumptions and hidden discourses.Footnote 3 My specific interest lies in exploring the influence of the curse theory, which I contend has become a powerful framework to explain wars in resource-rich countries, on legal and institutional developments in this field.Footnote 4
At risk of oversimplifying, the resource curse thesis (also known as the ‘paradox of plenty’) describes the interaction between resource commodities and armed conflict in the following terms. First, its proponents maintain that resource-rich countries often feature a combination of authoritarian governments, a high poverty rate, and weak governance structures that increases the risk of civil wars. In those contexts, natural resource revenues can be more easily diverted for personal benefit or purposes alien to the wellbeing of the population, which in turn generates grievances that – combined with other factors – may escalate to the level of violent conflict. Second, when conflict breaks out, governments’ failure to exercise effective control over extraction areas and borders, because of widespread corruption or patronage systems, facilitates the unregulated exploitation of natural resources by rebel groups, the prolongation of war, and associated human rights abuses. Third, a correlation is established between a transparent system of resource governance and peacebuilding, which results in the support for internationally sponsored interventions to restore state control over resource rich areas and promote a set of liberal values, such as good governance and accountability.
The three broad claims associated with the resource curse thesis have been extremely influential on the international plane and resulted in the adoption of a variety of legal/regulatory measures to end wars fuelled through the exploitation of ‘conflict resources’Footnote 5 and improve natural resource management in ‘fragile’ conflict and post-conflict countries. The most notable examples include commodity and targeted sanctions adopted by the United Nations Security Council (UNSC)Footnote 6 and multi-stakeholder initiatives, such as the Kimberley Process Certification Scheme for Diamonds,Footnote 7 the Extractive Industry Transparency Initiative,Footnote 8 and the OECD Due Diligence Guidance on Responsible Supply Chain of Minerals.Footnote 9
The consensus in the field is that, through economic sanctions, industry self-regulation, and legal reforms, the governance of natural resources in countries emerging from or at risk of conflict has improved, although international law should play a greater role in establishing the conditions for a durable peace.Footnote 10 While recognizing that questions of access to natural resources may be at the root of these wars, legal and institutional engagements with the structural dimension of resource distribution, which paved the way for the conflict, are rarely discussed in the scholarship.Footnote 11 Yet, as the critique of the ‘liberal peace’ project tells us,Footnote 12 a failure to address socio-economic grievances underpinning violent conflict weakens the chances of real, positive peace.Footnote 13 Further, the focus on marketization of natural resources, promotion of foreign investments and economic growth in post-conflict countries (although under the reformed legal framework) may reproduce inequalities and dispossessions important to conflict causation.Footnote 14
This article builds upon these critical insights to examine the tensions, silences and contradictions within the international legal field. What are the effects of upholding through legal practices the explanation offered by the resource curse theory over alternative ones? How can representations implicit in the resource curse thesis delimit responsibility in the context of resource-driven wars? What forms of violence are made visible and what marginalized?
To shed light on these questions, I will use the Sierra Leonean and Liberian Truth Commissions (TCs) as a case study. The decision to focus on these institutions is informed by different considerations. First, accountability mechanisms (such as TCs) are often presented as the vehicle to reconcile the liberal goals implicit in resource governance interventions with local demands for justice.Footnote 15 Second, the two TCs under scrutiny have dealt with the resource–conflict nexus from multiple angles, relying on a variety of international legal frameworks (international human rights law, laws of war, transnational/international criminal law, global regulatory regimes).Footnote 16 Third, TCs are mechanisms created to recover the ‘truth’ about severe and widespread acts of violence committed in the context of armed conflict or repressive regimes.Footnote 17 Examining their approach to resource-related conflict enables us to reflect on the normative impact of the narrative(s) produced by these institutions.Footnote 18 My argument is that the Sierra Leonean and Liberian TCs endorsed through their practice the values/assumptions underpinning the resource curse thesis in three ways: first, by attributing to local actors’ weakness, failure or desire for exploitation of natural resources as the primary causes for conflict; second, by exhibiting individual and physical atrocities as the main consequences of war-related resource extraction; third, by focusing on the reconstruction of state authority and good governance reforms as the way forward.
One way to read the story told by the TCs under examination is, following Anne Orford, as a narrative of the ‘new interventionism’.Footnote 19 Elements of the latter which are relevant for the present analysis are the focus on local origins of crises (or civil wars) and on the fault of the targeted state, portrayed as corrupt and authoritarian, while the peoples are described as being engaged in savage conflict. As observed by Orford, these narratives obscure the structural (and external) conditions that led to the conflict and become the justification for international interventions into the political economic life and institutional architecture of the ‘failed state’. These interventions, instead of being transformative, aim to ‘reaffirm the order, position and ideals that were threatened at the start of the narrative’.Footnote 20 By showing how the TCs in Sierra Leone and Liberia supported the ‘liberal peace’ agenda and marginalized structural injustices pertaining to the distribution of natural resources, this article illustrates another, more subtle way in which ‘the international’ intervenes in the Global South.Footnote 21
Section 2 provides an overview of the resource curse thesis and its core propositions as developed by political economists over the last few decades. Borrowing from critical perspectives within and across disciplinary borders, it draws attention to the limitations of the theory in explaining the causes and dynamics of resource wars in the Global South and how international law is relevant to these debates. Section 3 delves into the practice of the TCs in Sierra Leone and Liberia and explores to what extent the resource curse thesis shaped their approaches vis-à-vis the resource–conflict link. By illuminating blind spots in the reports authored by the TCs, this section discusses the effects of their selectivity on the diagnosis of the problem and recommendations to correct it. These should be seen as related concerns. If the diagnosis is inadequate, then prescriptions inevitably fall short of their expectations. Section 4 concludes by suggesting that we need to pay more attention to the power of frames in shaping legal practices in this area. Frames limit our understanding of the problem and the possibilities to achieve emancipatory ends, including through the law. What may happen if we change the lens through which we view the linkages between natural resources and violent conflict?
2. The resource curse theory and violent conflict: An overview and a critique
One central theme within the resource curse literature is the connection between the ‘paradox of plenty’, poor economic growth, and the likelihood of armed conflict.Footnote 22 Within this context, resource commodities are defined in terms of their role in increasing the risk of civil conflict or acting as an obstacle to peace. At its core lies the idea of resource wealth as underpinning the motives for starting and prolonging armed conflict, or as a causal factor leading to corruption, authoritarianism, abuses, and insecurity. While acknowledging the diversity and richness of this scholarship, for the purposes of this article, it is useful to identify three main strands in resource curse thought, which correspond roughly to the role of natural resources before, during and after an armed conflict.
The first is the ‘greed versus grievances’ debate, which emerged in the mid-1990s to explain the causal relation between natural resource abundance and conflict outbreak. Collier, a proponent of the greed thesis, argues that economic interests are a key driving force behind rebellion and civil war, more than social or political grievances. According to him, ‘some societies are more prone to conflict than others because they offer more inviting economic prospects for rebellion’,Footnote 23 such as large deposits of high-value natural resources and other ‘lootable’ assets. Collier’s work has proved quite popular in international policy circles and has had an important impact on initiatives by the World Bank and the UNSC.Footnote 24 Yet, the greed literature has been challenged by other political scientists questioning the nature of the link between resource wealth and conflict.Footnote 25 Steward, Brown and Langer, for instance, observe that ‘the conflict-inducing potential of natural resources is often mediated through their impact on HIs [horizontal inequalities]’.Footnote 26 According to the grievance theory, unequal distribution of natural resource wealth, coupled with dysfunctional resource governance by unaccountable political elites, are factors potentially leading to the outbreak of armed conflict.Footnote 27 A complementary and equally successful explanation of the nexus between resource commodities and war onset focuses on the weak state mechanism. Some theorists argue that resource-rich countries are often characterized by political and economic misrule, poorly functioning administrative structures, and endemic corruption, which make them less able to provide public goods and resolve social conflict.Footnote 28
Second, resource curse scholars have sought to explain how the availability of resource commodities is associated with the prolongation of hostilities.Footnote 29 Through reference to the ‘political economy of armed conflict’,Footnote 30 this literature maintains that resource extraction provides rebel groups and governments with the revenues to sustain their military campaign (i.e., the feasibility mechanism) and represents an economic incentive to prolong the fighting (i.e., the conflict premium mechanism).Footnote 31 The outbreak of an armed conflict, in other words, would generate a new political economy of war, where belligerent parties benefit from the situation of armed conflict and accumulate wealth through the exploitation of valuable commodities.Footnote 32 Building upon these explanations, reports by Human Rights Watch and Global Witness have documented the role of armed groups in the illicit trade of natural resources originating from conflict-affected countries and the linkages between local production sites and global markets.Footnote 33
Third, in addition of triggering and prolonging violent conflict, a relative recent theme is the role of natural resources in reinforcing the peace process and preventing conflict relapse. A growing literature is emerging to deal with the risks associated with environmental degradation, natural resource scarcity, and maldistribution in countries recovering from armed conflict.Footnote 34 The assumption is that a failure to integrate environmental concerns (broadly understood) in post-conflict strategies and policies may endanger the chances of a long-lasting peace. This interdisciplinary field of research and practice covers a variety of topics and its agenda is continuing to be refined.Footnote 35 However, a fundamental area of concern is the reform of natural resource governance in post-conflict countries to improve transparency and accountability, kick-start the economy, and generate peace dividends.Footnote 36 As observed above, the idea that post-conflict countries need to correct institutional flaws in resource management as part of the peacebuilding process is high on the policy agenda and has received the support of international organizations.Footnote 37 Several global regulatory initiatives have been devised to assist governments in reforming the natural resource sector and ensure that extractive activities are conducive to peace (e.g., the Kimberley Process Certification Scheme and the Extractive Industries Transparency Initiative (EITI) mentioned before).Footnote 38
Over the last couple of decades, the term ‘resource curse’ has entered the popular domain and has been used to describe how countries in the Global South, which are endowed with natural wealth, are unable to develop and cannot avoid declining into violent conflict. In the collective imaginary, wars in Angola, Sierra Leone, the Democratic Republic of the Congo, to name a few, have been associated with brutal wars waged by rebels driven by the lust for ‘blood diamonds’.Footnote 39 The ‘simplistic and generalizing appeal’ of some of its propositionsFootnote 40 resulted in widespread and uncritical acceptance of the theory by international organizations, civil society, and scholars across disciplines. Although some of the initial claims have been challenged for weaknesses in the methodology and revisited by subsequent studies,Footnote 41 the hidden discourses underlying the framework have remained largely unquestioned.
My primary concern here relates to the idea that violent conflicts in the Global South can be explained by ‘an internal resource-conflict nexus that is subversive of development, democratic governance, national, regional and global security’.Footnote 42 This idea is still dominant in the scholarship canvassed above and its relevance has transcended the field of political/economic sciences to enter the international legal domain through the development of soft law, regulatory regimes, and accountability mechanisms.
Yet, the resource curse, ‘when invoked as free-floating cultural explanation bereft of history’, can be misleading.Footnote 43 Critics of the resource curse theory argue that its description of the causes and dynamics of modern wars is superficial, at least. To begin with, the theory appears to be based upon a ‘commodity determinism’, which ignores the historical and structural dimensions of inequality and poverty in the Global South, as well as the role of external actors, notably former colonial powers and transnational corporations, in producing such evils.Footnote 44 As noted by Obi, who writes about oil:
blind spots in hegemonic discussions of the oil curse in Africa include the place of Africa’s oil in the global political economy, and how transnational actors and structures are deeply implicated in the corruption and armed conflicts in oil-rich states.Footnote 45
In other words, ‘poverty is a not just a condition, but a relationship’, in which prosperity and deprivation are two sides of the same coin.Footnote 46 As such, the theory does not answer a number of essential questions: ‘what forces turn belongings – those goods, in a material and an ethical sense—into evil powers that alienate people from the very elements that have sustained them, environmentally and culturally …?’Footnote 47 Or, more essentially, ‘who owns the mineral resources and since when?’Footnote 48
Further, critical scholars highlight that the resource curse thesis is predicated upon on a view of the Global South as a place of ‘complete lack of control and disorder … whose inhabitants – by some irrational logic of nature – have found themselves endowed with resources that cannot or do not know how to deal with an orderly manner’.Footnote 49 To put it differently, the theory is built upon a colonial fantasy, which imagines those who live in resource-endowed, developing countries as lacking ‘power, agency and authority’.Footnote 50 Such analysis not only tells a partial story of the complexity of these conflicts, but has been invoked as the basis for neoliberal interventions that consolidate the control over natural resources by political elites and corporate actors, without challenging the transnational structures that generate inequality and grievances in the Global South.Footnote 51
These arguments raise the question of the relationship between international legal discourses and the political economic processes described above. The interrelation of norms of international law and the continuation of colonial practices of dispossession is amply discussed in the literature. Scholars have shown how the development of legal doctrines has limited decolonizing states’ sovereignty over their natural wealth. AnghieFootnote 52 and Pahuja,Footnote 53 in particular, explain how international law has been complicit in the exploitation, by foreign capitals, of natural resources located in developing countries, notwithstanding efforts to reassert control over them by the newly independent states.
The next section illustrates the pervasiveness of the resource curse theory in legal practices and the problems generated by the support for its hidden propositions by the Sierra Leonean and Liberian TCs. My critique of the two TCs should be understood as a critique of the broader legal discourse surrounding resource-driven conflict and is not intended to diminish the significance of their work or to offer generalized conclusions about their impact on victims. Rather, my purpose is to explore what understandings of responsibility, victimhood, and violence emerge from the approach taken by these TCs and how certain distributive consequences may be legitimized through legal practices.
3. The political economy of TCs in Sierra Leone and Liberia
3.1 Localizing conflict causes and responsibility
As seen above, one of the problems (which is, arguably, also one of the strengths) of the resource curse thesis is that it thrives on a simplistic, determinate relationship between natural resource endowment and negative outcome, a proposition which conceals the much more complex nexus between resource commodities and violent conflict. Critical voices observe that this nexus is made by national–global linkages and involves a plurality of actors, such as transnational corporations, local and global elites, international financial institutions, benefitting from resource exploitation, trade, and accumulation.Footnote 54 On the contrary, through the emphasis on either greed or institutional failures, proponents of the resource curse tend to focus on local drivers of armed conflict, which, from a legal perspective, translates into local solutions. A close reading of the reports authored by the Sierra Leonean and Liberian TCs shows how these institutions only marginally engaged with the responsibility of external actors and global market processes. Even when they did so, the recommendations put forward were narrowly designed, identifying actions to be taken by the government.
Since Sierra Leone was a country with a massive diamond reserve, the competition for seizing control of diamond-producing regions by voracious African rebel groups and leaders (the Revolutionary United Front and Charles Taylor) is conventionally regarded as a main cause of the conflict.Footnote 55 This belief has been questioned by political scholars exploring the broader political and societal context before the war. According to them, some of the problems caused by the abundant diamond reserve are more useful to explain the structural inequality in Sierra Leonean society, which later fed into the war. This economic inequality led to frustration among the sectors of the population who were excluded from the benefits.Footnote 56 Several authors also argue that the conflict cannot properly be understood without reference to the marginalization of the country’s youth following decades of economic stagnation.Footnote 57 Beevers explains that for international actors the central problem that needed to be addressed was the ability of rebel groups or corrupt government officials to loot resources and prolong the conflict. This explanation leaves out the more complex roots of each conflict, which are also linked to natural resources. He claims that, in Liberia and Sierra Leone, conflict was enabled by resentment toward exploitative land relationships and the decision to make illegal the alluvial diamond mining that people relied on for their livelihoods.Footnote 58 Struggles between local communities, extractive companies, and security forces are also part of the story of these conflicts.Footnote 59
The TC sought to contrast the mainstream account of the war in Sierra Leone, by showing the more complex interaction between mineral resources and armed violence.Footnote 60 Yet, while refusing the simplistic idea of a greed-driven conflict, the TC focused its attention on the state and its failure to regulate the diamond sector before, during, and after the war. In the words of Schabas, who served as a TC commissioner, ‘the conflict was brought on by internal contradictions, not greedy outsiders’.Footnote 61 He maintained that its origins were to be traced to domestic factors, namely widespread corruption, bad governance, and the legacies of colonialism.Footnote 62
The TC went back in time and surveyed the operation of the diamond industry in the colonial period until the first years of the conflict.Footnote 63 What emerges from this historical excursus is that, since diamonds became a major source of export in the 1950s, the profits from the trade went into the hands of a privileged minority.Footnote 64 This aspect created ‘huge disparities in the socio-economic conditions. While the elite and their business associates in the diamond industry have lived in grandeur, the poor have invariably been left to rue the misappropriation of the collective wealth’.Footnote 65 The elites the TC refers to, however, are those in Sierra Leone and neighbouring African countries.
The ‘international’ is not totally absent from the story told by the TC. With the boom in diamond exports, illegal mining and smuggling started as well.Footnote 66 The Commission revealed the existence and persistence of transnational networks established by rebel groups, high-ranking government officials, and their business partners to manage the illicit trade and launder ‘blood diamonds’.Footnote 67 While recognizing the involvement of external actors and processes in the plunder of Sierra Leone’s wealth,Footnote 68 the blame ultimately is put on the local government and its weak governance system. According to the TC, ‘the lack of total state control over the diamond industry and other mineral resources had major repercussions for the conduct of the war in Sierra Leone’.Footnote 69 The state’s inability to govern its territory allowed both the RUF and Charles Taylor, when he became Liberia’s President, to ‘benefit[ed] enormously from the diamonds that passed through Liberia’.Footnote 70
TC recommendations on mineral resources are informed the resource curse’s emphasis on ‘the local’. The Commission held that high-value natural resources ‘can fuel internal strife’, but the risk is reduced when people are aware of what the state earns from the business and how the profits are spent.Footnote 71 This led to the recommendation for the Sierra Leonean government to regularly publish reports detailing how the proceeds from diamond exports are spent and how revenues are redistributed.Footnote 72 I shall return later to the TC’s focus on transparency and ‘good governance’. It is important to note that, under the title of ‘Community Empowerment’, few recommendations were aimed at redistributing wealth from diamond exports for the benefit of communities in mining areas. The TC recommended that a higher percentage of export tax on diamonds be made available to communities through the Community Development Programme.Footnote 73 While the primary significance of the tax would be symbolic, it tells a more accurate story of the conflict’s causes and remains the only (timid) effort to redress inequality as a factor leading to violent conflict.
The Liberian TC opened up the Chapter on ‘Economic Crimes’ reaffirming the link between resource wealth and underdevelopment (i.e., the paradox of plenty). In the Commission’s words, ‘despite its abundant natural resources, including tropical timber, rubber trees and minerals, Liberia has remained one of the poorest countries in the world’.Footnote 74 It then maintained that, ‘economic actors and economic activities played a crucial role in contributing to, and benefiting from, armed conflict in Liberia’.Footnote 75 But who are those actors and activities? The TC’s focus is on how ‘economic crimes’ and revenues from illegal logging and mining were used by the Liberian political elites for personal interests and to finance the conflict.Footnote 76 Relying on evidence produced by the Forest Concession Review Committee, the TC held that the Taylor’s government permitted timber companies to engage in illegal logging in exchange for loyalty, money and military support.Footnote 77 In return for privileged treatment, logging companies (for instance, the notorious Oriental Timber Company) facilitated the shipment to Liberia of weapons to be used in the ongoing armed conflict in violation of UNSC sanctions.Footnote 78
The findings above resulted in two orders of recommendations. First, the Liberian government was called to reform its legal architecture and ‘establish laws that will strengthen good governance’ over natural resources.Footnote 79 I shall return to these recommendations in Section 3.3. Second, the TC recommended the prosecution and vetting of perpetrators of ‘economic crimes’, which I discuss in the next section.
In sum, while the Sierra Leonean TC sought to complement (but did not reject) the predominant greed-focused narrative of the conflict by drawing attention to the institutional dimension of resource extraction in Sierra Leone, according to the Liberian TC access to high-valued natural resources was the main driving force behind the prolongation of the armed conflict. Yet, even when the Sierra Leonean TC turned to the colonial past and discussed the role of transnational networks in helping smuggle diamonds out of the country, the blame is on African corrupt elites and the ‘weak state’.Footnote 80 Likewise, although recognizing that foreign corporations benefited from the absence of rule of law associated with the conflict in Liberia, the Liberian TC pointed the finger primarily at the Taylor regime and its ‘massive patronage system’, as being responsible for the complete lack of control and disorder that enabled the perpetration of ‘economic crimes’. In both cases, the dysfunction is understood to be local, so it needs to be corrected locally at the state level.
3.2 Marginalizing structural and slow violence
As discussed in previous sections, the linkage between the ‘paradox of plenty’ and violence is addressed by resource curse theorists and their supporters primarily through reference to the conduct of authoritarian/corrupt regimes or ‘greedy’ military groups involved in the illegal exploitation of natural resources (and, occasionally, their unscrupulous business partners). This has ramifications on how the human suffering associated with resource-driven wars has been framed and addressed by international and civil society organizations. Unlawful killing, torture, rape, displacement, and forced labour in extraction areas controlled by military groups and security forces are considered the main manifestations of violence.Footnote 81 In the same way, the most accepted definition of ‘conflict resources’ puts an emphasis on ‘serious violations of human rights, violations of international humanitarian law or violations amounting to crimes under international law’.Footnote 82
The relevance of the human rights discourse appears thus limited to highly-visible atrocities perpetrated by local actors – the weak state or ruthless rebel groups – against the ‘bodies’ of victims. One way to explain this narrow focus, both in terms of responsible subjects and conducts, it to refer to the liberal conceptualization of human rights, which has dominated (and to some extent still dominates) the international legal and political agenda.Footnote 83 Critical scholars have pointed out how the emphasis of rights-based approaches on the state (as the duty bearer) fails to account for the interconnected character of the political and economic order, the power of non-state actors, and the different capacity of states to give effect to human rights – especially socio-economic rights.Footnote 84 Further, putting the liberal individual at the centre of right discourses may come at the expense of collective demands for more radical changes over the way wealth is managed and distributed at the domestic and global level.Footnote 85
As observed before, unequal access to natural resources and to the revenues linked to their exploitation leads to poverty and socio-economic injustices, which were, according to some, at the root of armed conflict in Sierra Leone and Liberia. These injustices can be better understood as concerning the ‘unequal relationship between collective entities or social groups’, rather than between individuals.Footnote 86 Johan Galtung’s concept of ‘structural violence’ is to be recalled here as the scholar was concerned with foregrounding the structures that can give rise to acts of personal/individual violence and constitute forms of violence in and of themselves. Galtung directed attention to the distinction between the violence produced by a known subject, terming it ‘direct violence’, and that which occurs at the structural level when no distinct subject perpetrator can be established, calling this ‘structural violence’:
There may not be any person who directly harms another person in the structure. The violence is built into the structure and shows up as unequal power and consequently as unequal life chances. Resources are unevenly distributed, as when income distributions are heavily skewed, literacy/education unevenly distributed, medical services existent in some districts and for some groups only, and so on. Above all the power to decide over the distribution of resources is unevenly distributed.Footnote 87
Another useful concept to understand what gets elided in mainstream accounts of the suffering associated with resource-driven wars is that of ‘slow violence’. Following Rob Nixon, ‘slow violence’ means ‘violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all’.Footnote 88 One can think of how aggressive patterns of resource extraction before and during conflicts result in land contamination, pollution, and environmental degradation, depriving local communities of livelihoods and other resources indispensable for survival.Footnote 89 Structural and slow violence feature only to a limited extent in the TCs’ discussion of the humanitarian impact of resource extraction associated with the conflict.
In Sierra Leone, the TC was primarily concerned with abuses committed by military/rebel groups involved in the conflict to get control over or exploit the country’s natural resources. For instance, the Commission referred to two RUF attacks against mines owned by foreign companies in January 1995, during which the nearby communities suffered pillaging, burning of villages, forced displacement, and abduction of girls and children.Footnote 90 The TC also described the inhuman labour conditions in diamond mines where RUF forcibly recruited workers that did not receive any remuneration and were subjected to torture,Footnote 91 and children.Footnote 92 It was only in a short passage that the TC took a broader perspective on the impact of mining and found that:
[t]he use and destruction of the land renders it unsuitable for agriculture. Even if the pits were refilled, the top soil is removed in the process of digging and therefore lost. This has a huge economic impact as it contributes to food shortages by disrupting agricultural production.Footnote 93
However, the slow violence associated with aggressive exploitation practices (food shortages, lack of employment opportunities) is not condemned under existing legal frameworks, rather it is acknowledged as part of the background. It is also absent from the prescriptions put forward by the Commission.
TC recommendations in response to findings concerning human rights violations associated with resource exploitation focused on selected issues. One is child labour in mines, for which the TC recommended the ratification of the International Labour Organization Convention 138 on the Minimum Age of Employment; harsher penalties for those who employed children in mines; and the enactment of further regulations to prevent the employment of children in mining.Footnote 94 As for the protection of the rights of miners, the Commission held that labour laws need to be ‘strictly enforced’, in particular provisions establishing limits on working hours.Footnote 95 The TC also recommended that resources generated by exploitation activities, taxes imposed on local and foreign corporations, and assets illegally transferred abroad during the conflict (once recovered) should serve to fund victim reparation programmes, including in the areas of health and education.Footnote 96
A different route was taken by the Liberian TC to address abuses resulting from conflict-related extractive activities. The TC relied on the notion of ‘economic crimes’ as denoting ‘[a]ny prohibited activity committed for the purpose of generating economic gains or that in fact generates economic gains’.Footnote 97 Such approach to the question of accountability resulted in the recommendation of more efforts by the government to fight impunity for ‘economic crimes’ through civil, criminal and administrative actions grounded in domestic and international law.Footnote 98 In addition to the prosecution of individuals that had committed criminal offences under Liberian law (e.g., bribery, money laundering), the TC recommended to introduce more severe penalties for violations of the law governing non-diamond mineral resources.Footnote 99 In case the Liberian government decided to prosecute international crimes, ‘grave economic crimes’ should be included in the mandate of an ‘Extraordinary Criminal Court of Liberia’, and perpetrators should be charged with the war crime of pillage.Footnote 100 Further, the Commission recommended the creation of a reparation fund to compensate victims of ‘economic crimes’ to be financed through confiscation of illicit profits and repatriation of Liberian assets located abroad.Footnote 101
The ‘economic crime’ perspective and the support for the creation of an ad hoc international criminal tribunal can be explained, inter alia, by the recent turn to criminal law in human rights discourses.Footnote 102 In the past couple of decades, complex questions of armed violence, identity politics and wealth distribution have been redefined in the ‘expert vocabulary of international criminal law’.Footnote 103 Yet, using criminal law to respond to embedded social injustices and collective responsibilities, such as those of transnational extractive companies and processes, has several limitations. While the TC recognized that economic dynamics of exploitation are related to patterns of abuses, it is telling that most (if not all) cases discussed concern physical atrocities perpetrated by security forces hired by logging companies to patrol their concessions or by military groups.Footnote 104 The TC collected testimonies on human rights violations committed by these local actors against workers and communities living near timber concessions and mining areas, notably the forcible recruitment of child soldiers and killing of civilians.Footnote 105 The localization of pathology, discussed above, distracts from the ‘culpability of those who benefitted from the system, even though they may not have the dirty hands in the more proximate sense’.Footnote 106 Framing the responsibility of economic actors in criminal terms raises also questions on the remedies to redress and prevent further harms, beyond the punishment of perpetrators. The latter being an individualized response, it leaves structural violence (e.g., issues of access to natural resource wealth) outside of the radar.
The stories narrated by these institutions remain centred around episodes of extraordinary violence and individual responsibility.Footnote 107 When structural and slow violence enter the picture, it is largely in the background. In other words, structural and slow violence remain the ‘context’ for the ‘real’ violence, on which the accountability institutions under study focus their attention and remedies.Footnote 108 Justice, in this context, is defined in retrospective terms, as reparation for past abuses or punishment of individual perpetrators. Given the little attention paid to the beneficiaries of resource extraction, distributive questions and demands for social justice are pushed at the margins.Footnote 109
3.3 Reforming the post-conflict state: Internationally sponsored resource governance interventions
One proposition of the resource curse theory is that armed conflicts break out because of the local government’s failure to exercise effective control over its natural resources due to widespread corruption, patronage systems, and absence of the rule of law.Footnote 110 The ‘weakness’ of the state facilitates also the unregulated exploitation of natural resources by rebel groups to sustain their armed struggle and associated human rights abuses.Footnote 111 These assumptions provide the ground for international interventions in the form of commodity sanctions, peacekeeping missions, and legal reforms in the post-conflict country to restore the state’s control over resource rich areas and promote ‘good governance’.Footnote 112 A correlation between transparent and ‘effective’ resource management, on the one side, and peacebuilding, on the other, is thus established as the way forward.Footnote 113
The Sierra Leonean and Liberian TCs dealt with the link between a corrupt and/or poorly managed natural resource sector and conflict. The Liberian TC maintained that successive governments were ‘either unwilling or unable’ to govern natural resources; therefore, armed groups could exercise effective control over extraction areas and corporate actors could generate profits in ‘an unregulated environment’.Footnote 114 Likewise, the Sierra Leonean TC held that governments never succeeded in establishing complete control over the diamond industry because of widespread corruption and collusion between business actors and local politicians.Footnote 115 Whereas efforts were made to improve the regulatory system, notably following Sierra Leone’s accession to the Kimberley Process, diamond smuggling continued to be significant because of flaws in the governance frameworks and ineffective law enforcement.Footnote 116
The solution to the problem is thus to introduce new legislation that will ensure better resource governance. In Liberia, the TC recommended that the government ‘must continue to reform its legal architecture’, and ‘revisit all policies of the past relating to the environment, natural resources, and the equitable and sustainable use and management of these resources including land’.Footnote 117 Some general principles were formulated to guide the government in such reforms, notably the need that resource exploitation be linked to national development programmes; that the Liberian people be involved in the decision-making process; that any damage to the environment caused by extraction activities be mitigated; and that institutions act in a transparent way.Footnote 118 The Sierra Leonean TC also expressed the need for legal reforms of the mining sector. Among the recommendations qualified as ‘imperative’, it is worth citing the regular publication of a report on governmental expenditures of diamond revenues and the establishment of a fair and transparent system of mineral exploitation licenses.Footnote 119 Other recommendations addressed diamond smuggling, for instance by enhancing border controls and eliminating intermediary dealers between miners and authorized exporters.Footnote 120 Fairly enough, the TC also suggested reforming the Kimberley Process through the establishment of an external monitoring system.Footnote 121 Lastly, to address corruption in the diamond sector, the Commission ‘imperatively’ recommended conducting an investigation of the actual beneficiaries of licenses held by relatives of public officials, as well as the publication of all mining license holders.Footnote 122
Except for the Liberian TC’s reference to more equitable resource governance and environmental mitigation, in both cases recommendations focused on reinforcing the state’s control over extraction areas and borders, increasing transparency in the management of natural resources, and addressing corruption of the local governmental apparatus. These measures seek to correct what are perceived as the major shortcomings of war-torn countries and are in line with parallel initiatives by the UNSC and other global governance bodies.Footnote 123
While well-intended, however, they fail to go at the root of the problem. To begin with, as scholars have observed in other contexts, they put an emphasis on the post-conflict state as the ‘primary agent of change’Footnote 124 and on technical/legal reforms at the national level.Footnote 125 By doing so, they leave outside the picture the systemic changes that are needed to ensure that extraction of natural resources does not contribute to further violent conflict and abuses. One can see the limitations of this approach with regard to corruption. The idea that corruption can be localized in Sierra Leone and Liberia and that it can be fought by changing the legal landscape in these countries is reinforced by the practice of the two TCs. Yet, as commentators have pointed out, focusing on the moment of the encounter between the public official and the private actor is insufficient and can actually distract from more effective strategies.Footnote 126
The TCs’ support for good governance, accountability, and transparency is better understood as part of the liberal peace project, which has dominated the international agenda since the end of the Cold War.Footnote 127 In our case, it is assumed that a liberal democratic government, which effectively controls and manages the natural resource sector in a way that supports economic development, will ensure peace and security. Law reforms are thus to be undertaken in order to create a climate of stability conducive of domestic and foreign private investment in extractive activities. International rules and practices, such as the EITI, Kimberley Process, and UNSC resolutions, are the standards against which the post-conflict state’s capacity to manage its natural resources is assessed. The political and economic values underpinning the liberal peace agenda, such as the promotion of free market and foreign investments and the protection of property rights are thus indirectly championed by the two TCs.Footnote 128 The question, which remains open, is whether the speedy resumption of natural resource extraction both in Liberia and Sierra Leone has reinforced or undermined the peace process.Footnote 129
Perhaps even more problematic is that, by focusing on stabilizing the country and spurring economic growth, both perceived as prerequisite of post-conflict transition, the measures sponsored by the two TCs have failed to address factors understood to have led to the conflict, including resentment over resource ownership and benefit sharing. Admittedly, TCs recommendations did not seek to correct inequalities and tensions created by the past governance of natural resources and only marginally challenged the transfer of wealth and decision-making power from local communities. In other words, they dealt only the symptoms (lack of security and corruption) rather than the structural dimensions of resource exploitation and its relationship with armed conflict.Footnote 130 As argued by the critique of liberal peacebuilding, the dangers inherent in such approaches is that promoting economic development without dealing with past grievances over resource distribution and structural violence may lead to the revival of old grievances or create new ones.Footnote 131
4. Conclusion: Re-establishing the status quo
Se vogliamo che tutto rimanga come è, bisogna che tutto cambi.Footnote 132
This article has questioned the existing, dominant discourse surrounding resource extraction in conflict and post-conflict settings and how such discourse has shaped the development and circulation of legal practices, including the work of TCs. While the resource curse theory is never explicitly invoked as the basis for international normative and institutional interventions in this area, its core propositions have been endorsed by UN bodies and NGOs and entered academic debates. Using the armed conflict in Sierra Leone and Liberia as a case study, I have called attention to the problems inherent in the hidden propositions within the resource curse thesis and its simplified understanding of resource-driven wars as started by voracious rebel groups or caused by corrupt/failed/weak states. Framing resource-related conflict in these terms has three impacts on the development of international norms. First, the responsibility of external actors (former colonial powers and transnational corporations) and economic processes of production and consumption are left at the margins of the picture. Second, structural and slow violence resulting from unequal access to and distribution of natural resources and ecological degradation are left unaddressed. Third, by identifying internationally-sponsored ‘good governance’ reforms as the way forward, the values underpinning the liberal peace agenda are reinforced through legal arrangements, with the risk of recreating the same dynamics of dispossession that paved the way for conflict.
The paradox at the heart of Tomasi di Lampedusa’s The Leopard is thus perhaps a paradox at the heart of the field. If questions of redistribution are central to these conflicts, can ‘justice’ be achieved when these concerns are discounted? Or to put it in other words ‘[t]o what extent does a process that ignores the aspirations of the vast majority of victims risk turning disappointment into frustration and outrage’?Footnote 133 In Sierra Leone, international efforts to revive industrial mining (albeit under the reformed legal framework) have helped re-create previous arrangements and tensions between communities and mining corporations. Despite the rhetoric of inclusion, the ability of people on the ground to be involved in decision-making remains insignificant. Promises by extractive industry are not kept, land is seized, the environment is degraded, and police continue to use disproportionate force in mining disputes.Footnote 134 Illuminating the influence of the resource curse thesis on the work of the two TCs helps us understand why ‘post-conflict’ countries seem trapped in a spiral of violence and how legal practices may (more or less inadvertently) support interventions in the political economy of the Global South, which re-establish previous patterns of exploitation.
Ultimately, this article is a reminder of the risks of accepting a certain vision of the world as a given and using it to develop policies and normative solutions without questioning the structures and values upon which that vision is premised. It is an attempt ‘to defamiliarize these ways of imagining the world and is a first step in addressing the argument that understanding the world in that way is somehow normal’.Footnote 135 The hope is that, once exposed, these structures and values can be contested and the law be engaged to counter the ‘injustices of everyday life’.Footnote 136
