{"id":26796,"date":"2025-11-28T08:00:31","date_gmt":"2025-11-28T07:00:31","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=26796"},"modified":"2025-12-02T11:19:24","modified_gmt":"2025-12-02T10:19:24","slug":"poisoned-fruits-of-reconstruction","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/poisoned-fruits-of-reconstruction\/","title":{"rendered":"Poisoned Fruits of Reconstruction"},"content":{"rendered":"

This blogpost explores how corporate actors may become complicit in international crimes during post-conflict reconstruction \u2014 particularly when economic activity normalises displacement and atrocity. It argues that due diligence obligations, though preventive in nature, can also reveal potential mens rea<\/em> for individual criminal responsibility when knowingly ignored.<\/p>\n

In today\u2019s re-globalised economy, the boundary between commerce and complicity is more porous than ever. Modern supply chains bind together thousands of actors across jurisdictions, yet they also blur the lines of accountability when human rights violations or international crimes occur. From the Caucasus to Africa and the Middle East, conflicts persist in which international crimes often go unpunished, and a troubling shift emerges \u2014 so-called peace deals (here<\/a>; here<\/a>; here<\/a>) blur the genuine pursuit of justice, turning accountability into a mere symbol that ensures the repetition of atrocities. In these regions, corporations often present themselves as agents of reconstruction, yet their engagement is driven more by profit than reconciliation, turning post-conflict rebuilding into another arena of extraction where profit grows on poisoned fruits.<\/p>\n

From Nuremberg to Brussels <\/strong><\/p>\n

The Nuremberg industrialist trials \u2014 Flick<\/a>, IG Farben<\/a>, Krupp<\/a> \u2014 established a foundational truth: Business executives can become agents of international crimes when corporate power aligns with state atrocity. In these post-war proceedings, leading industrialists were prosecuted for their companies\u2019 direct participation in the Nazi war economy \u2014 using forced and slave labour from concentration camps, exploiting expropriated property in occupied territories, and supplying weapons and materials essential to the war effort. The judgments exposed how private companies had integrated themselves into a system of mass human rights violations, and war. They confirmed that economic actors are not neutral observers, but potential facilitators of mass violence.<\/p>\n

Eighty years later, the same moral question re-emerges in a new regulatory vocabulary. The German Lieferkettensorgfaltspflichtengesetz<\/a> (Supply Chain Due Diligence Act, LkSG) and the forthcoming EU Corporate Sustainability Due Diligence Directive<\/a> (CSDDD) translate Nuremberg\u2019s ethical legacy into compliance form. These laws impose a positive duty to know, prevent, and address human rights and environmental risks in global value chains.<\/p>\n

Due Diligence and Mens Rea<\/em><\/strong><\/p>\n

Although due diligence legislation is framed as preventive rather than punitive, it creates new expectations that resonate with international criminal law. If a company\u2019s human-rights officer reports risks of forced labour, eviction (Annex, Part I 1 (4) CSDDD)<\/a>, or persecution to the board \u2014 and the board knowingly fails to act \u2014 the resulting inaction may help establish mens rea<\/em> for aiding and abetting under the Rome Statute. While the Rome Statute excludes corporate criminal liability, board members and executives can incur individual liability when their knowing inaction or deliberate blindness substantially contributes to international crimes. Corporate due diligence systems thus become both preventive and evidentiary in character: they can expose, but also implicate, the individuals who disregard them. Thus, due diligence is not merely a compliance checklist; it can become a source of knowledge and, paradoxically, of potential liability. Human rights due diligence (HRDD), generates structured knowledge about risks of severe harm. This knowledge, once documented, can later serve as evidence of awareness or intent (mens rea<\/em>) where executives ignore credible warnings. Thus, HRDD does not create liability \u2014 but it can illuminate the line where neglect becomes complicity.<\/p>\n

In this sense, business and human rights (BHR) and international criminal law (ICL) are not separate silos. BHR operates ex ante \u2014 to prevent harm \u2014 while ICL operates ex post \u2014 to sanction it. Together, they define the modern field of corporate accountability.<\/p>\n

Corporate Complicity Between Peace and Profit<\/strong><\/p>\n

The September 2023 blockade and the mass exodus<\/a> of more than 100,000 ethnic Armenians from the region\u2014described by the European Parliament (Resolution 2023\/2879 (RSP))<\/a> as ethnic cleansing\u2014were accompanied by persecution, denial of humanitarian access, and destruction of cultural property. Each of these acts falls within the Rome Statute\u2019s definitions of crimes against humanity (Article 7 (1)(d) and (h)) or war crimes (Article 8 (2)(a)(vii)).<\/p>\n

Importantly, the deportation of the Armenian population constitutes an ongoing crime against humanity<\/a>, not a closed historical episode. The continued prohibition on return, the confiscation and destruction<\/a> of homes and property (cf. \u00a7 61(b) ICJ Provisional Measures)<\/a>, and the systematic erasure of cultural identity<\/a> perpetuate the original crime. In this sense, the situation remains legally and morally unfinished: the crime did not end with displacement\u2014it endures through its maintenance.<\/p>\n

Almost immediately, attention shifted from justice to \u201creconstruction.\u201d Airports<\/a>, highways, and energy corridors<\/a> began to rise on land emptied of its inhabitants. Corporations entered the region<\/a> under the banner of rebuilding but in reality, may became participants in the consolidation of an ongoing international crime. The same logic threatens to repeat itself elsewhere. Discussions about the future reconstruction of Gaza<\/a>, while the conflict and mass displacement are still unfolding, illustrate how economic planning can outpace accountability. When rebuilding is planned before investigations or reparations, reconstruction risks becoming another mechanism of control rather than recovery.<\/p>\n

From the standpoint of international criminal law, this phenomenon produces two main forms of corporate involvement:<\/p>\n

Ongoing-crime Complicity<\/strong><\/p>\n

Firstly, individual corporate decision-makers may incur international criminal liability when their companies provide material, financial, or logistical support that sustains continuing persecution, deportation, or unlawful population transfer. The Rome Statute does not recognise corporate criminal liability, but it does impose responsibility on individuals who, through their roles within a company, knowingly enable or contribute to such crimes.<\/p>\n

For instance, this could arise where executives approve the supply of construction materials or services used to build infrastructure on land from which civilians have been forcibly removed and are still prevented from returning.<\/p>\n

Before engaging in such activities, a company\u2019s first and non-delegable duty is to conduct human-rights due diligence and risk analysis, as required under the (non-binding) UN Guiding Principles on Business and Human Rights<\/a> and reflected in the EU CSDDD. This process must identify whether the operating environment involves ongoing or recent international crimes \u2014 such as mass deportation, ethnic cleansing, or destruction of civilian property \u2014 and determine whether the company\u2019s services could contribute to their continuation.<\/p>\n

If decision-makers proceed despite credible reports of atrocities, they risk moving from due diligence failures to individual criminal liability. Under Article 25(3)(c) of the Rome Statute, an individual is criminally liable for aiding and abetting where they knowingly provide practical assistance that has a substantial effect on the commission of a crime by a principal perpetrator (Katanga \u00a7\u00a01385)<\/a>. Jurisprudence such as Furund\u017eija (\u00a7\u00a7 233\u2013235)<\/a> and Taylor (\u00a7\u00a0483)<\/a> confirms that even conduct \u201cin itself perfectly lawful\u201d becomes criminal when it facilitates such crimes. Thus, it is not the company but the individuals whose decisions within it may incur criminal responsibility, as the Rome Statute excludes corporate liability. This may include the human rights officer (equivalent to Section 4(3) of the Supply Chain Due Diligence Act, LkSG)<\/a>, where they intentionally fail to report clear risks identified through the due-diligence process, as well as executives who, after receiving such reports, nonetheless authorise operations that enable the continuation of international crimes. Where due diligence reveals credible evidence of atrocities and either (i) the responsible officer withholds this information or (ii) the board knowingly decides to proceed regardless, this deliberate conduct may meet the threshold for aiding and abetting.<\/p>\n

Post-Crime Complicity<\/strong><\/p>\n

Secondly, while such situations rarely create individual criminal liability, individuals may still help consolidate atrocities when their companies profit from the effects of past international crimes. This occurs, for example, when corporate actors redevelop confiscated property or exploit natural resources in areas from which a population remains permanently displaced, turning apparent post-conflict development into the economic normalisation of injustice.<\/p>\n

Even if these actions fall short of direct criminal liability, they can legitimise and entrench the results of international crimes, transforming unlawful territorial or demographic changes into a new \u201cnormal.\u201d This phenomenon \u2014 often described as perpetuating the effects of an international crime \u2014 has been recognised in international jurisprudence, including the ICJ\u2019s Wall Advisory Opinion (\u00a7 121)<\/a>, which condemned the construction of settlements in occupied territory as unlawful because it maintained the effects of an illegal occupation, and the ICTY\u2019s Br\u0111anin judgment (\u00a7\u00a7 118; 555)<\/a>, which affirmed that conduct consolidating ethnic cleansing contributes to the crime\u2019s enduring impact. Such precedents demonstrate that facilitating or materially benefiting from the outcomes of atrocity, even after the acts themselves have ceased, can carry significant legal and moral consequences. Decision-makers may not incur criminal liability under the Rome Statute in such circumstances, but their actions can nonetheless reinforce the structural consequences of international crimes and hinder prospects for justice, restitution, and return.<\/p>\n

From Complicity to Conscience<\/strong><\/p>\n

From a corporate perspective, the question is not only what went wrong, but what responsible conduct should look like. Companies entering territories marked by forced displacement or ongoing persecution have an obligation \u2014 grounded in both law and ethics \u2014 to avoid normalising the effects of international crimes.<\/p>\n

First, corporations should suspend engagement until legality and justice are clarified through independent investigations inter alia<\/em> by the UN, EU, or ICC. If such institutions remain absent or silent, and the conflict parties themselves agree to \u201cmove on,\u201d<\/a> this does not absolve companies of their own responsibility. International inaction or political compromise cannot transform an ongoing crime into a legitimate business environment. In such cases, corporations must apply an even higher level of enhanced due diligence, relying on credible open-source reports, civil-society monitoring, and human-rights fact-finding to assess whether their activities would contribute to sustaining persecution or displacement. Second, companies should conduct human-rights impact assessments in consultation with displaced populations to affirm that rights to property, return, and recognition remain intact even without a peace agreement. Third, they must distinguish genuine recovery from legitimisation: rebuilding essential services may support communities, but constructing airports, highways, or industrial zones in depopulated areas risks becoming economic annexation.<\/p>\n

The absence of international oversight does not create a moral vacuum; it shifts the burden of vigilance onto the corporate actor. Even if criminal liability thresholds are high, ethical responsibility remains, and the absence of prosecution does not absolve companies of responsibility. Under the UN Guiding Principles and the forthcoming CSDDD, responsible business conduct requires linking reconstruction to justice and restitution, as rebuilding without this distinction risks turning engagement into complicity.<\/p>\n","protected":false},"excerpt":{"rendered":"

This blogpost explores how corporate actors may become complicit in international crimes during post-conflict reconstruction \u2014 particularly when economic activity normalises displacement and atrocity. It argues that due diligence obligations, though preventive in nature, can also reveal potential mens rea for individual criminal responsibility when knowingly ignored. In today\u2019s re-globalised economy, the boundary between commerce […]<\/p>\n","protected":false},"author":37,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5089,7848,4094],"authors":[7217],"article-categories":[6000],"doi":[],"class_list":["post-26796","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-business-and-human-rights","tag-corporate-accountability","tag-international-criminal-law","authors-gurgen-petrossian","article-categories-article"],"acf":{"subline":"Corporate Complicity and the Post-Crime Economy on the Example of Nagorno-Karabakh"},"meta_box":{"doi":"10.17176\/20251128-171711-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26796","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/37"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=26796"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26796\/revisions"}],"predecessor-version":[{"id":26806,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26796\/revisions\/26806"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=26796"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=26796"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=26796"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=26796"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=26796"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=26796"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}