Don't Prosecute CEOs in Front of the International Criminal Court

Lumping international corporations with illicit practices is naïve and shows an ignorance of business practices.

By SHARE
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**ADVANCE FOR SUNDAY, FEB. 3** Local villagers work on their cocoa farm in Abo village near Ikom, Nigeria, Thursday, Dec. 13, 2007. From Brazil to central Africa to once-lush islands in Asia's archipelagos, human encroachment is shrinking the world's rain forests.

Stephen Hayes is president and CEO of the Corporate Council on Africa.

Not very long ago, Kamari Clark, an anthropology professor at Yale University, wrote an op-ed piece that appeared in the New York Times calling for corporate CEOs involved in illicit activities to be brought before the International Criminal Court for the exploitation of Africa's resources and peoples. Never mind that in 10 years the International Criminal Court has successfully prosecuted exactly one crime, and that the court's usefulness should be seriously questioned. Rather one should look at the merits of her argument and those merits should be very seriously questioned.

Nearly all of us at one time or another have despised the behavior of some corporations. For instance, BP's wanton disregard for the Gulf of Mexico, and the subsequent destruction of Gulf waters, wildlife, and livelihoods is but one of many examples. BP should be fined, as it was, and perhaps some key figures should be taken to court for gross negligence. But do these types of acts really warrant trials before the International Criminal Court? It is hard not to want some greater punishment for all the damage done, but that court is not the way.

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Professor Clark's major thesis is that "violence in Africa begins with greed—the discovery and extraction of natural resources ... —and continues to be fed by struggles for control of energy, minerals, food and other commodities." Given the history of Africa beyond just the past 150 years (since the Berlin Conference), this is a surprisingly simplistic view of the past to the present. One would think that an anthropology professor might be more attuned to cultural, tribal and historical factors of conquest and conflict over the last 2,000 years in Africa. In many instances these factors have as much to do with conflict as does greed. She might as well have said  that the cause of all problems are the seven deadly sins.

Clark is right to say that there is a mighty struggle for control of resources. This is, for better or worse, the nature of the global economic system and we should be working towards sustainability, as many are. However, Africa does not benefit by leaving the resources where they are. I think Professor Clark understands that. She refers to the "illicit exploitation of natural resources, trafficking in hazardous wastes and other offenses." She does lump international corporations together with rebels and political parties as responsible for the illicit activities. This is far too broad a brush with which to paint her argument. Never mind that legitimate corporations negotiate terms and conditions with governments and act, therefore within the legal framework of the law. I can accept that many legal systems in Africa need to be strengthened and made consistent and transparent. The problem is that Professor Clark also seems to show a predetermined bias by regarding corporate behavior as illicit behavior and in so doing lumps all business together. 

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Furthermore, some of the examples she uses in her op-ed are seriously flawed and lack understanding of culture and reality. This is especially true in the case of the cocoa trade, where she singles out three of the world's largest cocoa companies, Nestle, Hershey, and Cadbury, (none are members of the Corporate Council on Africa) stating that they benefit from exploitative labor practices. The fact is that more than 80  percent of the world's cocoa comes from family farms, and many of the workers are children of the family owners. The situation is not so different from the United States of the late 1800s and early 1900s where families had their children working, sometimes without the benefit of schooling. My parents were doing family work on their farms before they were teens though they also attended school. These were the times and conditions in which our nation found itself in and to some extent this is the historical time of some countries in Africa. The 2008 report that Professor Clark cites states that 87 percent of children (ages 6-17) in cocoa-growing areas of Cote d'Ivoire participate in cocoa-growing farming. Of this 98 percent are working on their family farms. The conditions are sometimes dangerous, especially when exposure to pesticides is involved, as also in the cases of burning of the fields and cutting. Context may not be fair, but it is important to understanding the nature of the problem.

There can be little doubt that there is abusive child labor on some cocoa farms, and some children allegedly have been kidnapped from other countries and put to work on some farms. Those responsible should be found and prosecuted to the maximum extent, but does one really send Nestle, Hershey, and Cadbury executives to the International Criminal Court because they buy cocoa? Under that logic, shouldn't we all be brought before the International Criminal Court because we buy and eat chocolate and hence encourage the cocoa trade as it exists today? These very same companies, through the World Cocoa Foundation, are working to resolve the problem through training of farmers and examining more closely the sources of the product. Child labor is a serious issue throughout Africa and on the Indian subcontinent, but to use the International Criminal Court to adjudicate and prosecute these issues is a fanciful and wasteful approach to addressing issues of development.

Lumping international corporations with illicit practices is naïve and shows an ignorance of business practices by most corporations. I also suspect it shows a strong ideological bias not based on facts. I am in agreement with the African Union recommendations that the illegal exploitation of natural resources, trafficking in hazardous wastes should be prosecuted. However, suggesting that such practices be placed under the jurisdiction of the International Criminal Court is foolish and would almost certainly add yet another barrier to investment in Africa that the continent so badly needs.

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