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International law, the paradox of plenty and the making of resource-driven conflict

Published online by Cambridge University Press:  04 June 2020

Eliana Cusato
Eliana Cusato*
Affiliation:
Essex Law School, Wivenhoe Park, Colchester, CO4 3SQ, United Kingdom
*
Email: [email protected]
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Abstract

Access to and distribution of natural resources have been since immemorable time at the root of violent conflict. Over the last few decades, international institutions, legal scholars and civil society started to pay attention to the dangerous liaison between resource commodities and wars. Current debates emphasize how, through sanctions, global regulatory initiatives, and legal accountability, the governance of natural resources in conflict and post-conflict countries has improved, although international law should play a greater role to support the transition to a durable peace. The aim of this article is to illuminate the biases and limitations of dominant accounts by exploring the influence of the resource curse thesis, and its hidden propositions, upon legal developments. Using the Sierra Leonean and Liberian Truth Commissions as a case study, it shows how legal practices and discourses have contributed to a narrow understanding of resource-driven wars as started by voracious rebel groups or caused by weak/authoritarian/corrupt governments. What is obscured by the current focus on greed and ineffective resource governance? What responsibilities and forms of violence are displaced? Engaging with these questions allows us to see the dynamics through which structural injustices and distributive concerns are marginalized in existing responses to these conflicts, how the status quo is perpetuated, and the more subtle ways in which external interventions in the political economy of the Global South take place.

Keywords

good governanceinternational lawnatural resource exploitationtruth commissionswar
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 3 , September 2020 , pp. 649 - 666
Copyright
© Foundation of the Leiden Journal of International Law 2020

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Footnotes

*

Lecturer, School of Law, University of Essex. I am grateful for helpful comments from many colleagues and for the opportunity to present versions of this article at several venues, including the 2018 Melbourne Doctoral Forum on Legal Theory and the 2019 Harvard Institute for Global Law and Policy Scholars Workshop. Special thanks are owed to Sundhya Pahuja and Vidya Kumar for their generous engagement with my work. I am thankful also for the constructive feedback provided by the two anonymous reviewers. Errors and omissions remain my own.

References

1 See S. Zweig, Magellan (translated by Alzir Hella) (2012).

2 See, e.g., D. Dam-de Jong, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations (2015); D. Dam-de Jong, ‘The Role of Informal Normative Processes in Improving Governance over Natural Resources in Conflict-Torn States’, (2015) 7 Hague Journal of the Rule of Law 219; Anderson, C., ‘Sanctions, Transparency, and Accountability: The Missing Link in Natural Resource Anti-Corruption Efforts’, (2017) 48 Georgetown Journal of International Law 779Google Scholar; S. C. Wisner, ‘Criminalizing Corporate Actors for Exploitation of Natural Resources in Armed Conflict: UN Natural Resources Sanctions Committees and the International Criminal Court’, (2018) 16(5) Journal of International Criminal Justice 963; C. Bruch and A. Fishman, ‘Institutionalizing Peacebuilding. The UNCC, Conflict Resources, and the Future of Natural Resources in Transitional Justice’, in C. Payne and P. Sand (eds.), Gulf War Reparations and the UN Compensation Commission: Environmental Liability (2011); M. B. Taylor and M. Davis, ‘Taking the Gun Out of Extraction: UN Responses to the Role of Natural Resources in Conflicts’, in C. Bruch, C. Muffett and S. Nichols (eds.), Governance, Natural Resources and Post-Conflict Peacebuilding (2016), 249; O. Radics and C. Bruch, ‘The Law of Pillage, Conflict Resources, and Jus Post Bellum’, in C. Stahn, J. Iverson and J. Easterday (eds.), Environmental Protection and Transitions from Conflict to Peace (2017).

3 International law is understood here in broad terms, as including hard and soft law, international treaties, and global/transnational regimes regulating both public and private conduct.

4 For references to the rich literature on the resource curse see infra Section 2.

5 The term ‘conflict resources’ indicates resource commodities, such as oil, timber, minerals, and diamonds extracted in conflict zones and traded to sustain the fighting. However, different international actors and legal regimes put an emphasis on different aspects of conflict-related resource exploitation. The NGO Global Witness focuses on the humanitarian impact of exploitation practices: ‘conflict resources are natural resources whose systemic exploitation and trade in a context of conflict contribute to, benefit from, or result in the commission of serious violations of human rights, violations of international humanitarian law or violations amounting to crimes under international law’. The Kimberley Process Certification Scheme defines ‘conflict diamonds’ also quite narrowly, focusing on their exploitation by non-state armed groups: ‘rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments’. See Dam-de Jong, International Law and Governance, supra note 2, at 26–7.

6 See, e.g., UNSC Res. 1173 (1998) UN Doc. S/RES/1173 (1998), and UNSC Res. 1176 (1998) UN Doc. S/RES/1176 (1998) (Angola); UNSC Res. 1306 (2000) UN Doc. S/RES/1306 (2000) (Sierra Leone); UNSC Res. 1493 (2001) UN Doc. S/RES/1493 (2001) (Democratic Republic of the Congo); UNSC Res. 1343 (2001) UN Doc. S/RES/1343 (2001) and UNSC Res. 1408 (2002) UN Doc. S/RES/1408 (2002) (Liberia); UNSC Res. 2134 (2014) UN Doc. S/RES/2134 (2014) (Central African Republic).

7 See www.kimberleyprocess.com/.

8 See eiti.org/.

9 Available at www.oecd.org/daf/inv/mne/OECD-Due-Diligence-Guidance-Minerals-Edition3.pdf. Other soft law instruments regulating the exploitation of natural resources in conflict zones (or ‘high-risk areas’) are the International Conference on the Great Lakes Region Regional Certification Mechanism; the Voluntary Principles on Security and Human Rights for Extractive Industry Companies; and the Equator Principles.

10 See generally the references cited supra note 2.

11 One notable exception is Okowa, P., ‘Sovereignty Contests and the Protection of Natural Resources’, (2013) 66 Current Legal Problems 33CrossRefGoogle Scholar, calling attention to the deeply-rooted problems raised by the existing regulation of natural resources in conflict and post-conflict settings, notably international law’s focus on the state as the main agent, inequality and subordination within the international legal order, and the preference for market-driven solutions which often reflect the interests of a limited number of states and industry representatives.

12 The concept of ‘liberal peace’ or ‘liberal peacebuilding’ denotes all activities implemented by international organizations (UN, international financial institutions, and NGOs) to promote stability, democracy, and development in countries emerging from violent conflict. Criticisms have been raised with regard to the two dominant features of liberal peacebuilding: the promotion of free market economy and liberal democracy. For a review of critical literature on liberal peacebuilding see, e.g., C. L. Sriram, ‘Liberal Peacebuilding and Transitional Justice: What Place for Socioeconomic Concerns?’, in D. Sharp (ed.), Justice and Economic Violence in Transition (2014), 27, at 31–4; McAuliffe, P. and Schwöbel-Patel, C., ‘Disciplinary Matchmaking: Critics of International Criminal Law Meet Critics of Liberal Peacebuilding’, (2018) 16 Journal of International Criminal Justice 985CrossRefGoogle Scholar.

13 See generally Ahearne, J., ‘Neoliberal Economic Policies and Post-Conflict Peace-Building: A Help or Hindrance to Durable Peace?’, (2009) 2 POLIS Journal 1Google Scholar.

14 See, e.g., Beevers, M., ‘Governing Natural Resources for Peace: Lessons from Liberia and Sierra Leone’, (2015) 21 Global Governance 227CrossRefGoogle Scholar; Beevers, M., ‘Peace Resources? Governing Liberia’s Forests in the Aftermath of Conflict’, (2015) 22 International Peacekeeping 26CrossRefGoogle Scholar.

15 See, e.g., E. Harwell, ‘Building Momentum and Constituencies for Peace: The Role of Natural Resources in Transitional Justice and Peacebuilding’, in Bruch, Muffett and Nichols, supra note 2, at 633; S. Nichols, ‘Reimagining Transitional Justice for an Enduring Peace: Accounting for Natural Resources in Conflict’, in Sharp, supra note 12, at 203.

16 While TCs are complex and multiform institutions, which perform different functions, this article focuses on their role as accountability mechanisms operating within a globalized field of transitional justice. The two TCs under examination addressed legal questions of responsibility of a variety of actors. International law provides legitimacy to these investigative bodies and the vocabulary through which they are called to assess and redress the violence associated with armed conflict. In Sierra Leone and Liberia, the UN played a substantial role in the negotiation of the peace agreements that established the two truth-seeking mechanisms and in the implementation of said agreements. The UN High Commissioner for Human Rights selected three international members of the Sierra Leonean TC and it was decided that the TC would be administratively managed as a project of the UN Office of the High Commissioner for Human Rights. Also emblematic is the fact that the final report of the Sierra Leonean TC was presented to the UNSC.

17 See, e.g., Report of the UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2004) UN Doc. S/2004/616; Report of the UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (2011), UN Doc. S/2011/634. See also P. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2011).

18 Critical literature warns against the partial view of the past that is developed by TCs and other accountability institutions and the consequences in terms of reinforcing a certain understanding of violence, victimhood, and responsibility. See, e.g., V. Nesiah, ‘Theories of Transitional Justice: Cashing in the Blue Chips’, in A. Orford and F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016), 779, at 790; Orford, A., ‘Commissioning the Truth’, (2006) 15 Columbia Journal of Gender and Law 851Google Scholar, at 859–63; R. Nagy, ‘Transitional Justice as a Global Project: Critical Reflections’, in R. Buchanan and P. Zumbansen (eds.), Law in Transition: Human Rights, Development and Transitional Justice (2014), 215, at 217.

19 See Orford, A., ‘Muscular Humanitarianism: Reading the Narratives of New Interventionism’, (1999) 10 EJIL 679CrossRefGoogle Scholar; see also Orford, A., ‘Locating the International: Military and Monetary Interventions after the Cold War’, (1997) 38 Harvard International Law Journal 443Google Scholar; Orford, A., ‘The Politics of Collective Security’, (1996)17 Michigan Journal of International Law 373Google Scholar.

20 Orford, ‘Muscular Humanitarianism’, ibid., at 699–700.

21 Not all forms of political, economic and legal interventions determining how natural resources are to be ‘managed’ in the Global South take place after armed conflict. One can think of how the internationalization of the development project resulted in interventions of the World Bank and the International Monetary Fund in the daily life of developing countries. Through conditionality, states are often required to implement policies/reforms aimed at fully exploiting natural resources located within their territory and privatizing their extraction. On this point see S. Pahuja, ‘Conserving the World’s Resources?’, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (2012), 398, at 407.

22 The canonical text is P. Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done (2008). Specifically on the resource curse theory and armed conflict see, e.g., M. Berdal and D. Malone (eds.), Greed and Grievance: Economic Agenda in Civil Wars (2000); Le Billon, P., ‘The Political Ecology of War: Natural Resources and Armed Conflicts’, (2001) 20 Political Geography 561CrossRefGoogle Scholar; I. Bannon and P. Collier (eds.), Natural Resources and Violent Conflicts: Options and Actions (2003); Ross, M., ‘How Do Natural Resources Influence Civil Wars? Evidence from Thirteen Cases’, (2004) 58 International Organization 35CrossRefGoogle Scholar; Ross, M., ‘What Do We Know About Natural Resources and Civil Wars?’, (2004) 41 Journal of Peace Research 337CrossRefGoogle Scholar; P. Le Billon, Fuelling War: Natural Resources and Armed Conflict (2005).

23 P. Collier, ‘Doing Well Out of War: An Economic Perspective’, in Berdal and Malone, supra note 22, at 91–111; Collier, P. and Hoeffler, A., ‘On Economic Causes of Civil Wars’, (1998) 50 Oxford Economic Papers 563CrossRefGoogle Scholar.

24 For a critical account of the reasons for Collier’s success among the political elites see Keen, D., ‘Greed and Grievance in Civil War’, (2012) 88 International Affairs 757CrossRefGoogle Scholar.

25 For instance, subsequent studies found that the nexus between natural resource wealth and armed conflict is influenced by a multitude of variables, including the resource type and the characteristic of a specific conflict. See, e.g., M. Ross, ‘How Do Natural Resources Influence Civil War?’, supra note 22, at 35; Le Billon, P., ‘Natural Resource Types and Conflict Termination Initiatives’, (2009) 70 Colombia Internacional 9CrossRefGoogle Scholar, at 12.

26 F. Steward, G. Brown and A. Langer, ‘Major Findings and Conclusion of the Relationship Between Horizontal Inequalities and Conflict’, in F. Stewart (ed.), Horizontal Inequalities and Conflict (2008), 285, at 294.

27 M. Klare, ‘Resource Predation, Contemporary Conflict, and the Prevention of Genocide and Mass Atrocities’, in S. P. Rosenberg, T. Galis and A. Zucker (eds.), Reconstructing Atrocity Prevention (2016), 249, at 256–7.

28 See, e.g., M. Ross, ‘The Politics of Resource Curse: A Review’, in C. Lancaster and N. van de Walle (eds.), The Oxford Handbook of the Politics of Development (2018), 201, at 212.

29 Collier, P. and Hoeffler, A., ‘Greed and Grievance in Civil Wars’, (2004) 56 Oxford Economic Papers 563CrossRefGoogle Scholar; Collier, P., Hoeffler, A. and Rohner, D., ‘Beyond Greed and Grievance, Feasibility and Civil War’, (2009) 61 Oxford Economic Papers 1CrossRefGoogle Scholar.

30 See, e.g., K. Ballentine and J. Sherman (eds.), The Political Economy of Armed Conflict: Beyond Greed and Grievance (2003).

31 Collier, ‘The Bottom Billion’, supra note 22, at 13.

32 D. Keen, ‘Incentives and Disincentives for Violence’, in Berdal and Malone, supra note 22, at 26–7.

33 See, e.g., Human Rights Watch, The Curse of Gold (2005); Global Witness, Faced with a Gun, What Can You Do? War and the Militarisation of Mining in Eastern Congo (2009).

34 See, e.g., Bruch, Muffett and Nichols, supra note 2; Lujala, P., Rustad, S. A. and Kettenmann, S., ‘Engines for Peace? Extractive Industries, Host Countries, and the International Community in Post-Conflict Peacebuilding’, (2016) 7 Natural Resources 239CrossRefGoogle Scholar; P. Lujala and S. A. Rustad, High-Value Natural Resources and Post-Conflict Peacebuilding (2012); Brown, K., ‘War Economies and Post-Conflict Peacebuilding: Identifying a Weak Link’, (2012) 3 Journal of Peacebuilding and Development 6CrossRefGoogle Scholar; K. Conca and J. Wallace, ‘Environment and Peacebuilding in War-torn Societies: Lessons from the UN Environment Programme’s Experience With Post-conflict Assessment’, in D. Jensen and S. Lonergan (eds.), Assessing and Restoring Natural Resources In Post-Conflict Peacebuilding (2012), 17, at 63.

35 See, e.g., Bruch, C., Jensen, D., Nakayama, M. and Unruh, J., ‘The Changing Nature of Conflict, Peacebuilding and Environmental Cooperation’, (2019) 2 Environmental Law Report 49Google Scholar. The key areas of concern for environmental peacebuilding are described as follows: (i) re-establishing states’ control over natural resources by curbing illegal exploitation activities; (ii) reforming natural resource sector to ‘jump start’ the economy; (iii) addressing land distribution issues as part of governance reforms; (iv) rebuilding basic infrastructures, including water and sanitation; (v) employing environmental remediation projects to foster co-operation, dialogue, and reconciliation. On this point see C. Bruch, ‘Considerations in Framing the Environmental Dimensions of Jus Post Bellum’, in Stahn, Iverson and Easterday, supra note 2, at 32–3.

36 See, e.g., Whittemore, L., ‘Intervention and Post-Conflict Natural Resource Governance: Lessons from Liberia’, (2008) 17 Minn. J. Int’l L. 387Google Scholar. While recognizing the diversity of perspectives associated with the environmental peacebuilding literature, my critique here pertains to how the concept of environmental peacebuilding can be used to support neoliberal peace approaches and political economic interventions in post-conflict countries.

37 See, e.g., Statement by the President of the Security Council (25 June 2007) UN Doc. S/PRST/2007/22; Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict (11 June 2009), UN Doc. A/64/866–S/2010/386; UNEP, Addressing the Role of Natural Resources in Conflict and Peacebuilding (2015). It is important to note that states have different views concerning the nexus between resource exploitation and war. See the discussion at the 8372nd Meeting of the UN Security Council, Maintenance of International Peace and Security: Root Causes of Conflict – The Role of Natural Resources, (16 October 2018), UN Doc. S/PV.8372, available at undocs.org/en/S/PV.8372.

38 Another example is the Liberia Forest Initiative (LFI), a programme established by the United States, the World Bank, the EU Commission, the International Union for the Conservation of Nature, the FAO, and NGOs to assist the Liberian government in the implementation of legal reforms in the forestry sector, with a view to ensuring transparent forest management.

39 See, e.g., ‘Campbell Testimony Shines Light on Blood Diamond and the Importance of International Justice’, Global Witness, 4 August 2010, available at www.globalwitness.org/en/archive/campbell-testimony-shines-light-blood-diamonds-and-importance-international-justice/.

40 Lahiri-Dutt, K., ‘“May God Give Us Chaos, so that We Can Plunder”: A Critique of Resource Curse and Conflict Theories’, (2006) 49 Development 14CrossRefGoogle Scholar, at 14.

41 See, e.g., J. Cuvelier, K. Vlassenroot and N. Olin, ‘Resources, Conflict and Governance: A Critical Review of the Evidence’, October 2013, Justice and Security Research Programme Paper 9, available at eprints.lse.ac.uk/56351/1/JSRP_Paper9_Resources_conflict_and_governance_Cuvelier_Vlassenroot_Olin_2013.pdf.

42 Obi, C., ‘Oil as the “Curse” of Conflict in Africa: Peering Through the Smoke and Mirrors’, (2010) 37 Review of African Political Economy 483CrossRefGoogle Scholar, at 484.

43 R. Nixon, Slow Violence and the Environmentalism of the Poor (2011), at 70.

44 See, e.g., Watts, M., ‘Oil, Development, and the Politics of the Bottom Billion’, (2009) 24 Macalester International 79Google Scholar; L. Wengraf, ‘The Pillage Continues: Debunking the Resource Curse’, Review of African Political Economy, 2017, available at roape.net/2017/01/24/pillage-continues-debunking-resource-curse/#_edn14.

45 Obi, supra note 42, at 485.

46 Marks, S., ‘Human Rights and the Bottom Billion’, (2009) 1 European Human Rights Law Review 37Google Scholar, at 49. In this piece, Susan Marks critically reviews Paul Collier’s book, The Bottom Billion, supra note 22.

47 Nixon, supra note 43, at 69.

48 Lahiri-Dutt, supra note 40, at 16.

49 Ibid., at 15.

50 A. Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (2003), at 176. See also Ch. 5 for a discussion on how colonial stereotypes and heroic narratives underpin humanitarian and post-conflict interventions.

51 Lahiri-Dutt, supra note 40, at 19. See also Obi, C., ‘Oil Extraction, Dispossession, Resistance, and Conflict in the Niger Delta’, (2010) 30 Canadian Journal of Development Studies 219CrossRefGoogle Scholar.

52 Antony Anghie maintains that, while the doctrine of Permanent Sovereignty over Natural Resources (PSNR) was relied upon by developing states to justify the legality of nationalizations that accompanied decolonization, such claims were opposed by the developed world. The latter argued that nationalization ‘incurred state responsibility by violating the doctrine of acquired rights, which mandates that a new state must respect the obligations undertaken by a predecessor state’. Accordingly, the ‘newly independent countries were legally bound to hono[u]r the concessionary rights to their natural resources that private enterprises had acquired prior to independence’ or they had to provide compensation according to international (i.e., Western) standards. See Anghie, A., ‘The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case’, (1993) 34 Harv. Int’l. L. J. 445Google Scholar, at 474; see also Anghie, A., ‘Legal Aspects of the New International Economic Order’, (2015) 6 Humanity 145CrossRefGoogle Scholar.

53 S. Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (2011), especially Ch. 4 ‘From Permanent Sovereignty to Investor’s Protection’.

54 Obi, supra note 42, at 489 et passim.

55 See, e.g., Partnership Africa Canada (I. Smillie et al. (eds.)), The Heart of The Matter: Sierra Leone, Diamonds and Human Security (2000), claiming that ‘[o]nly the economic opportunity presented by a breakdown in law and order could sustain violence at the levels that have plagued Sierra Leone since 1991. Traditional economics, political science and military history are of little assistance in explaining Sierra Leone’s conflict. The point of the war may not actually have been to win it, but to engage in profitable crime under the cover of warfare. Diamonds, in fact, have fuelled Sierra Leone’s conflict, destabilizing the country for the better part of three decades, stealing its patrimony and robbing an entire generation of children, putting the country dead last on the UNDP Human Development Index’.

56 Se Young Jang, ‘The Causes of the Sierra Leone Civil War: Underlying Grievances and the Role of the Revolutionary United Front’, E-IR, 25 October 2012, available at www.e-ir.info/2012/10/25/the-causes-of-the-sierra-leone-civil-war-underlying-grievances-and-the-role-of-the-revolutionary-united-front/.

57 See, e.g., M. Boas, ‘Marginalised Youth’, in M. Bøås and K. C. Dunn (eds.), African Guerrillas: Raging Against the Machine (2007); Zack-Williams, A. B, ‘Sierra Leone: The Political Economy of Civil War, 1991–98’, (1999) 20 Third World Quarterly 143CrossRefGoogle Scholar, arguing that the series of structural adjustment programmes deployed by successive governments in the 1980s and 1990s to receive loans from the IMF had a destructive effect upon vulnerable groups and reduced the employment prospects of the Sierra Leonean people.

58 M. Beevers, Peacebuilding and Natural Resource Governance after Armed Conflict: Sierra Leone and Liberia (2019), especially Ch. 4 (Liberia) and Ch. 6 (Sierra Leone).

59 Beevers, M., ‘Governing Natural Resources for Peace: Lessons from Liberia and Sierra Leone’, (2015) 21 Global Governance 227CrossRefGoogle Scholar, at 230.

60 Report of the Sierra Leonean Truth and Reconciliation Commission, Volume 3B, Ch. 1, ‘Mineral Resources, their Use and their Impact on the Conflict and the Country’ (2004), paras. 7, 8, available at www.sierraleonetrc.org/index.php/view-the-final-report/download-table-of-contents [Report Sierra Leonean Commission].

61 Schabas, W. A., ‘Conjoined Twins of Transitional Justice? The Sierra Leone Truth and Reconciliation Commission and the Special Court’, (2004) 2 J. Int’l Crim. Just. 1082CrossRefGoogle Scholar, at 1086 (emphasis added).

62 Ibid., at 1085.

63 Report Sierra Leonean Commission, supra note 60, para. 11.

64 Ibid., paras. 58–63.

65 Ibid., para. 4.

66 Ibid., paras. 21–3. Interestingly, the TC mentions that, as a result of illicit mining, the Sierra Leone Selection Trust (the company created by the colonial power, which was granted exclusive mining rights throughout the country) started to employ private security forces to police the mines. The TC acknowledges that ‘[t]his was the first instance of the hiring of mercenaries in Sierra Leone, but many others would follow, especially during the conflict’.

67 Ibid., para. 50.

68 The Commission recognizes that ‘[i]nadequate monitoring of the origin of diamonds is one of the major problems in the industry. The Belgian Diamond High Council (HRD), on whose trading floors a large proportion of the international diamond trade takes place, records the origin of diamonds as the country from which they were last exported. Such recording tells nothing about where the diamonds were actually mined. For instance, a diamond can be smuggled from Sierra Leone into Liberia, then shipped to London, and be recorded as being of British origin, even if Britain does not produce diamonds’. Ibid., para. 40.

69 Ibid., para. 72.

70 Ibid., para. 52.

71 Report of the Sierra Leone Truth and Reconciliation Commission, Vol. 2, Ch. 3, Recommendations [Report Sierra Leonean Commission, Recommendations], para. 439, available at www.sierraleonetrc.org/index.php/view-the-final-report/download-table-of-contents.

72 Ibid., para. 440.

73 Ibid., paras. 470–3.

74 Republic of Liberia Truth and Reconciliation Commission, Vol. 3 Appendices, Title III, ‘Economic Crimes and the Conflict: Exploitation and Abuse’, 2009, para. 2, available at www.sierraleonetrc.org/index.php/view-the-final-report/download-table-of-contents [Report Liberian Commission].

75 Ibid., para. 3.

76 Ibid., para. 81.

77 Ibid., para. 26. The TC found that from 1979 to 2003 no timber company had the legal right to log in Liberia.

78 Ibid., paras. 19, 74.

79 Ibid., paras. 140, 168.

80 Report Sierra Leonean Commission, supra note 60, para. 208, maintaining that: ‘[s]uccessive post-colonial governments in Sierra Leone have mismanaged the diamond industry and placed its effective control in the hands of non-Sierra Leoneans in a way that has not benefited the majority of the people. The state never had effective control of the diamond industry prior to or during the conflict period’.

81 See, e.g., Global Witness, The Truth about Diamonds, 15 November 2006, available at www.globalwitness.org/en/archive/truth-about-diamonds/.

82 See, e.g., UNEP, From Conflict to Peacebuilding: The Role of Natural Resources and the Environment (2009), at 7. As noted above, this is the definition put forward by Global Witness.

83 See, e.g., M. Mutua, ‘The Transformation of Africa: A Critique of Rights in Transitional Justice’, in Buchanan and Zumbansen, supra note 18, at 91; Kapur, R., ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, (2006) 28 Sydney Law Review 665Google Scholar; D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004); Chimni, B. S., ‘International Institutions Today: An Imperial Global State in the Making’, (2004) 15 EJIL 1CrossRefGoogle Scholar, at 11; Mutua, M., ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’, (2001) 42 Harvard International Law Journal 201Google Scholar.

84 For an excellent overview of the different critiques levelled against the existing conceptualization of human rights see A. Chadwick, Law and The Political Economy of Hunger (2019), at 176–85.

85 Ibid. See also Anghie, A., ‘Whose Utopia? Human Rights, Development, and the Third World’, (2013) 22 Qui Parle 63CrossRefGoogle Scholar, at 75, observing how the effort of linking the Third World’s vision of development to human rights failed, as the ‘language of rights is constructed in a way that that is inadequate for purposes of bringing any claims of global redistribution …’.

86 A. Mukherjee-Reed, ‘Rights and Development: A Social Power Perspective’, in Buchanan and Zumbansen, supra note 18, at 73.

87 Galtung, J., ‘Violence, Peace, and Peace Research’, (1969) 6 Journal of Peace Research 167CrossRefGoogle Scholar, at 170–1. For a discussion on the limitations and potentials of Galtung’s conceptualization of structural violence see Winter, Y., ‘Violence and Visibility’, (2012) 34 New Political Science 195CrossRefGoogle Scholar.

88 Nixon, supra note 43, at 2.

89 The adverse environmental impact of logging was highlighted in the Report of the Panel of Experts Pursuant to Paragraph 25 of Security Council Resolution 1478 (2003) Concerning Liberia, UN Doc. S/2003/779, para. 14, maintaining that ‘[t]he overexploitation of Liberia’s forests threaten[ed] … the lives, livelihoods and culture of Liberians who depend on the forest’. See also paras. 66–8.

90 Report Sierra Leonean Commission, supra note 60, paras. 125–7.

91 Ibid., paras. 189–92.

92 Ibid., paras. 199–206.

93 Ibid., para. 197.

94 Report Sierra Leonean Commission, Recommendations, supra note 71, paras. 462–8.

95 Ibid., para. 469.

96 Ibid., para. 506.

97 Report Liberian Commission, supra note 74, para. 8.

98 Ibid., para. 140.

99 Ibid., paras. 142–57.

100 Ibid., para. 164.

101 Ibid., para. 158.

102 For a critique of the use of criminal law to address human rights issues and of the progress narrative associated with the turn to criminal law see, e.g., Engle, K., ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’, (2015) 100 Cornell Law Review 1069Google Scholar; V. Nesiah, ‘Doing History with Impunity’, in K. Engle, Z. Miller and D. Davis (eds.), Anti-Impunity and the Human Rights Agenda (2016), 95.

103 Nouwen, S. and Werner, W. G., ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’, (2015) 13 Journal of International Criminal Justice 157CrossRefGoogle Scholar, at 161.

104 Report Liberian Commission, supra note 74, para. 50.

105 Ibid., para. 53; see also paras. 105–11.

106 Nesiah, supra note 18, at 795.

107 H. Charlesworth has compellingly argued that, by focusing on crises, the discipline of international law fails to meaningfully engage with ‘longer-term trends and structural problems’. The fundamental implication is that ‘[t]hrough regarding “crises” as its bread and butter and the engine of progressive development of international law, international law becomes simply a source of justification for the status quo’. See Charlesworth, H., ‘International Law: A Discipline of Crises’, (2002) 65 The Modern Law Review 377CrossRefGoogle Scholar.

108 See Nouwen, S., ‘As You Set Out for Ithaka: Practical, Epistemological, Ethical, and Existential Questions about Socio-Legal Empirical Research in Conflict’, (2014) 27 Leiden Journal of International Law 227CrossRefGoogle Scholar, at 254 et passim, levelling this critique against international criminal trials. See also Nagy, supra note 18, at 223.

109 For arguments in support of placing the beneficiaries at the centre of international legal practices see S. Marks, ‘Exploitation as an International Legal Concept’, in S. Marks (ed.), International Law on the Left (2008), 281, referring to the ‘beneficiary thesis’ developed by Mahmood Mamdani in his work on the South African Truth and Reconciliation Commission.

110 See, e.g., Vines, A., ‘Dousing the Flames of Resource Wars’, (2006) 13 South African Journal of International Affairs 85CrossRefGoogle Scholar.

111 See, e.g., Whittemore, supra note 36, emphasizing the role of the international community and its institutions in promoting effective resource governance in post-conflict countries. See the other references canvassed in Section 2.

112 For a critique of the concept of ‘good governance’, although broader and not specific to post-conflict contexts, see A. Anghie, Imperialism, Sovereignty, and the Making of International Law (2005), especially Ch. 5. Anghie argues that the concept of ‘good governance’, while formulated as an abstract and universal ideal, ‘provides the moral and intellectual foundation for the development of a set of doctrines, policies and principles, formulated and implemented by various international actors, to manage, specifically, the Third World state and Third World peoples’. Ibid., at 249.

113 See Statement by the President of the Security Council, supra note 37: ‘[t]he Security Council emphasizes that, in countries emerging from conflict, lawful, transparent and sustainable management, -at local, national and international level-, and exploitation of natural resources is a critical factor in maintaining stability and in preventing a relapse into conflict. The Council recalls in this respect that it has welcomed country specific initiatives such as the Governance and Economic Assistance Management Program (GEMAP) in Liberia (UN Doc. S/RES/1626 (2005)) and related efforts such as the Liberia Forest Initiative’.

114 Report Liberian Commission, supra note 74, para. 135.

115 Report Sierra Leonean Commission, supra note 60, para. 156 (emphasis added).

116 Ibid., paras. 174–87.

117 Report Liberian Commission, Consolidated Final Report, Section 20.7, at 403–4 (emphasis added).

118 Ibid.

119 Report Sierra Leonean Commission, Recommendations, supra note 71, paras. 439–42.

120 Ibid., paras. 443–50.

121 Ibid., paras. 451–8.

122 Ibid., paras. 459–61.

123 The Sierra Leonean and Liberia TCs’ focus on these measures cannot be understood without reference to the complementary practice of the UN Security Council. The Security Council has stressed several times ‘the important role, in the context of Security Sector Reform in post-conflict environment, of transparent and effective national security and customs structures for the effective control and management of natural resources by preventing the illegal access to and the trade and exploitation of those resources. The Security Council [has] emphasize[d]s that, in countries emerging from conflict, lawful, transparent and sustainable management - at local, national and international level - and exploitation of natural resources is a critical factor in maintaining stability and in preventing a relapse into conflict’. See, e.g., Statement by the President of the Security Council (2007), supra note 37, at 2–3 (emphasis added).

124 Marks, S., ‘Human Rights and Root Causes’, (2011) 74 The Modern Law Review 57CrossRefGoogle Scholar, at 71.

125 See, e.g., Tzouvala, N., ‘A False Promise: Regulating Land Grabbing and the Post-Colonial State’, (2019) 32 Leiden Journal of International Law 235CrossRefGoogle Scholar.

126 L. Kulamadayil, ‘When International Law Distracts: Reconsidering Anti-Corruption Law’, (2018) 7(3) ESIL Reflection, available at esil-sedi.eu/institutional_member-fields/, arguing that international anti-corruption instruments focus on the moment that a public official unlawfully accepts economic advantages from a private citizen in exchange for favours. This encounter is governed primarily by the domestic laws of the country where corruption occurs. In practice, however, most fiscal transactions associated with corruption take place in the jurisdiction of countries from the Global North. Kulamandayil refers to the work of J. C. Sharman, who points out that ‘dirty’ money passes through clean channels and is mostly spent on goods and services sold in the jurisdictions of powerful states that actively support international anti-corruption efforts. See J. C. Sharman, The Despot’s Guide to Wealth Management: On the International Campaign against Grand Corruption (2017).

127 Ibid.

128 See H. Franzki and M. C. Olarte, ‘Understanding the Political Economy of Transitional Justice: A Critical Theory Perspective’, in S. Buckley-Zistel et al. (eds.) Transitional Justice Theories (2014), 201, at 214–16, discussing the complex relationship between the liberal peace project and post-conflict justice. They argue that political and economic liberalization, which are the pillars of contemporary peacebuilding practices, do not constitute separate agendas but are linked to transitional justice initiatives through the concept of the ‘rule of law’. The promotion of the rule of law in the context of the liberal peacebuilding and transitional justice contributes to legitimize the neoliberal restructuring of states emerging from conflict. As such, although transitional justice presents itself as a neutral/apolitical project, it favours certain political/economic assumptions (liberal democratic values and free markets) and marginalizes others.

129 Beevers, Governing Natural Resources, supra note 14, at 235–7.

130 Beevers, Peace Resources, supra note 14, at 37.

131 R. Paris, At War’s End: Building Peace After Conflict (2004), at 112–34.

132 G. Tomasi di Lampedusa, Il Gattopardo/The Leopard (1958), (‘if we want everything to remain as it is, everything must change’).

133 M. Mamdani, ‘Reconciliation without Justice’, in V. De Vries and S. Weber (eds.), Religion and Media (2001), at 385, as cited by Marks, supra note 109, at 281.

134 Beevers, Governing Natural Resources, supra note 14, at 237.

135 Orford, ‘Muscular Humanitarianism’, supra note 19, at 705.

136 Charlesworth, supra note 107, at 392.