A corporation charged for murder?

A court in New York is considering whether Royal Dutch Shell can be convicted for the killing of Ken Saro-Wiwa and others in Nigeria by the Nigerian government at the behest of the oil giant. It would set a new precedent for litigation: a foreign corporation charged in a US court for aiding the human rights violations of another government.

My question is, should it really be the corporation that is charged? A corporation is more like a group than a person. If a person shoots and kills another, surely it is he that must face trial. If Royal Dutch Shell is implicated in Saro-Wiwa’s murder, though, who ordered it? Who within the corporation was responsible? Surely it was not everyone but a few people at the top. And to charge Royal Dutch Shell without charging the corrupt members of the Nigerian government for their actions makes little sense.

Moreover, if one were only charging the corporation, the losers would probably be the shareholders more than anyone. While some shareholders presumably made money from the benefit of the silenced opposition, not all shareholders did. Saro-Wiwa was killed in 1995. Did the shareholders know about it and approve it at the time? Perhaps they would not have if they had known. And do those who bought Royal Dutch Shell stock since 1995 deserve to lose money?

I would rather see law meted out to punish the individuals who are criminally responsible for the deaths of Nigerian protestors than simply everyone who happened to be around at the time.

Be careful what lessons we draw from the defeat of the Tamil Tigers

Every war presents opportunities for its participants to make peace. It also presents learning opportunities for those of us attempting to observe and analyse it. That is why it is important to draw the right lessons from each conflict.

The war in Sri Lanka is sometimes portrayed as a war between the state and a terrorist organisation, and therefore, the defeat of the Tamil Tigers was the defeat of a terrorist group. Some are calling the killing of LTTE leader Velupillai Prabhakaran equivalent (at least for Sri Lanka) to the killing of Osama bin Laden. However, this conclusion may be misleading.

The problem is with the word “terrorist”. Groups that are labeled terrorist organisations are very broad in scope, so merely being called terrorists says little about them. It may be prudent to note that the Tamil Tigers were the de facto government of much of the Tamil area of Sri Lanka for decades. Many terrorist organisations only have the power to scare outsiders into political action.

While negotiations were persistently beset by setbacks until their very end, the Tigers were nonetheless a group that could be negotiated with. But many terrorist groups cannot be negotiated with, nor can they be defeated militarily. These groups have highly decentralised structures and move through the people as a fish swims in the water, as Mao said. The Tigers could not have been swimming among the people if they were decisively beaten, without the army killing virtually all Tamil citizens to get at the Tigers.

Sri Lanka is now at a crucial point in its history. The Sinhalese government has defeated the Tigers because they can be defeated, and must negotiate with them because they can negotiate. If the winning side breaks promises, punishes ethnic Tamils and does nothing to help them integrate into the wider Sri Lankan state, it might not be long until there is more violence. It will not have defeated terrorism. It will have squandered the opportunity for learning and for peace.

The United States should embrace international law

It is staggering to read the backlash against President Barack’s nomination of Harold Koh as legal advisor to the US State Department. It also reveals a serious misunderstanding of what his appointment would mean.

The reason for the anger at Koh is that he is an apologist of international law. His views are that the US should embrace “transnational jurisprudence”: international law should inform the legislative process in the US and elsewhere. He is right.

His critics seem to believe that non-American laws are somehow inferior to American ones; that international law can override the American constitution; that the International Criminal Court is praying for Koh’s nomination so that they can jump into the US and arrest Americans; and that the US’s sovereignty, and thus existence, is at stake. These fears are simply unfounded.

International laws are similar to American ones. International criminal law, for instance, forbids many of the same things American law does: killing, stealing, organised crime, and so on. One big fear among conservative Americans is that international law will mean Americans can no longer carry their guns. Why would this be so? There are indeed conventions against the manufacture and trafficking of illegal arms, designed to reduce the ability of rebels and transnational criminal organisations to obtain weapons; but do law-abiding Americans need to worry about this law?

International laws stop where the rule of law at national level begins. Not all countries need to sign up to all international conventions. If someone in the United States wanted to ratify an international treaty, it would not be a simple matter of a White House legal aide’s signature: it would need to be passed by all three branches of the US government. And if there were an international convention that took away the firearms of all citizens of all states, do you seriously believe it would pass through Congress?

The International Criminal Court is also not an issue for Americans. Americans will not be tried at the Hague. The ICC statute is very clear on this: if a country lives under the rule of law, with a good, fair legal system, it will not be targeted by the Court. The ICC is for countries like Sudan and Uganda, which will not or cannot try the worst of its citizens as criminals. Because of the US’s strong legal system, though not one without flaws, the ICC has no reason to intervene into US jurisdiction.

While it is clear that many are afraid of losing the American constitution to international bodies, many more simply want to attack President Barack. Most of the people criticising his choice for legal advisor are people who rarely have a good word to say about him at any time. This is just the latest attempt at “preemptive discreditation”, in the words of Ronan Farrow of Forbes, of the president. Along with the White House, Harold Koh’s supporters include the Senate, which generally approves of him, the Senate Committee on Foreign Relations, who voted 12-5 in his favour, and 11 prominent American law professors, who wrote a letter to Congress in his favour. But how could they support a man who thinks other countries’ laws are better than America’s?

They do not. They support a man who does not dispute the supremacy of the US constitution, while acknowledging that other countries’ experiences in interpreting the US constitution just might be educational. Imagine that–the US could learn something from other countries.

Along with the educational value of someone who understands and appreciates international law, appointing Harold Koh could mean more legitimacy for the US in its international engagement. The US’s reputation abroad suffered terribly under the Bush administration, in large part due to an illegal war and illegal actions while fighting that war. Reputation counts. When a country has a good reputation, say for behaving according to accepted norms and supporting others internationally, it gets what it wants in international organisations such as the UN and the WTO. When it squanders its goodwill, as the Bush administration found out in its second term, its influence drops considerably. Power is no longer about who has the most guns: it is about influencing others, who also have guns.

If the United States wants to retain the capital it has won internationally by making the right choice for president and legal advisor, it will embrace international law, and Harold Koh.

A serious term is overused

Racist violence is a serious problem. Sometimes it happens on a wide scale. Sometimes thousands are killed and displaced in a war. But not all racist violence is genocide.

“Genocide” is used nowadays to refer to virtually every conflict going on. The word is used as a political tool to bring people together in common cause. Everyone thinks genocide is wrong, right? After the riots in Tibet in 2008 and the crackdown that followed, some called it a genocide. Tamils use it to describe the war in Sri Lanka. Palestinians call Israeli actions in the Occupied Territories genocide. When speaking on Sudan, Nigeria, Chechnya and East Timor, some people throw the word around like a basketball. Strictly speaking, these are not cases of genocide.

I could easily be wrong, though. One reason for such widespread use of the word is its unclear definition. Scholars give various definitions, from systematically massacring an entire group to that given by the Convention on the Prevention and Punishment of the Crime of Genocide, “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [such as] killing members of the group; causing serious bodily or mental harm…; preventing births within the group; [and] forcibly transferring children of the group to another group.” One could be forgiven for thinking almost anything is genocide.

Nonetheless, to overuse a word is to desensitise oneself and take the idea it conveys for granted. Genocide is recognised as a kind of legal trump card called jus cogens: like slavery or crimes against humanity, genocide is illegal under any circumstances. If we start calling too many things genocide, we are exaggerating and might be missing the nuances of the situation that separate it from the deliberate destruction of a whole ethnic group. The word “rape” has acquired a similar role as a basketball word. It is somewhat akin to the boy who cried wolf: cry genocide often enough and people will stop listening.

The executive director of B’Tselem, for instance, agrees. As the leading Israeli human rights organisation, B’Tselem is one of the most important organisations that inform Israelis of their government’s actions in the Occupied Territories. When Hugo Chavez called Operation Cast Lead, the 2008-9 war on Gaza, a genocide, Jessica Montell wrote that “such demagoguery” is “inaccurately and cynically” tossing words around. B’Tselem was among the first and most vocal to criticise Israel’s handling of the war, for which it may be guilty of war crimes; but war crimes are not genocide. These crimes are serious but “bear no resemblance to genocide or an attempt to exterminate Palestinians.” We “must firmly reject such offensive sloganeering and the trivializing of genuine human rights concerns. Only a careful naming of the reality can fuel genuine efforts to promote justice.”

The alternative, therefore, is to give a more accurate term to say what you mean. What is going on in Darfur may be a genocide, although it may be more like a civil war. (In fact, in trying to convict Sudanese leaders of genocide, the International Criminal Court may lose a case that is nonetheless a clear instance of crimes against humanity.) The war in Sri Lanka is a civil war or an insurgency. In Tibet, it is more like repression. The 2003 war in Iraq was interstate war, occupation, insurgency, sectarian violence, chaos, but if it is genocide, who is committing it? All sides have been killing innocents. Besides, the highest estimates of casualties found 1.4m Iraqis killed since March 2003: a high number, but a small proportion of the 28m people in the country.

Serious words like genocide should be used sparingly in order to preserve their meaning. If we overuse, exaggerate and politicise words, we are bound to lose credibility and supporters.