Monday, December 5, 2022
Home Crime Could sanctions lead to prosecutions for international crimes? – EJIL: Talk!

Could sanctions lead to prosecutions for international crimes? – EJIL: Talk!

by admin
0 comment

Throughout the Ukraine conflict, allegations have been made against foreign businesses for providing various types of direct or indirect support for Russia’s military attacks. Most recently, firms were placed under US sanctions on 15 November 2022 for ‘the production or ongoing transfer to Russia of Iranian unmanned aerial vehicles used by Russia [in] devastating attacks against civilian infrastructure in Ukraine’. In the current circumstances of the war in Ukraine, the provision of military assistance to Russia probably violates international law (see here and here). Could it also be a basis to hold individuals criminally responsible? Might investigations deter others from supporting Russia? And would such prosecutions even be a good idea?

Corporate accountability for Ukraine: backing-up sanctions with international criminal law

As evidenced by the US designations of 15 November 2022, the primary international response to external support for Russia has been one of diplomacy, undergirded by the threat or actual imposition of international sanctions. The idea of prosecuting the individual officers of sanctioned corporations – for complicity in alleged Russian international crimes – has received limited attention. For sure, numerous practical and political obstacles would stand in the way of bringing these cases before the ICC, an international(ized) tribunal, or in Ukrainian and other national courts. It is also difficult to ascertain the likely deterrent effects of penal accountability on businesses that are already subject to sanctions. Nonetheless, a growing appetite for corporate accountability can be seen in some jurisdictions.

This deep dive blog post argues that legal liability for alleged Russian crimes extends to complicit business actors, such as those involved in supplying and transferring Iranian drones. There is potential for investigations by international bodies (including the ICC Officer of the Prosecutor, the Eurojust-supported Joint Investigation Team, the UN Independent International Commission of Inquiry on Ukraine, and the OSCE Moscow Mechanism), by Ukrainian authorities at the Office of the Prosecutor General of Ukraine, and by the many ground-level organizations and individuals in Ukraine including the 5am Coalition (perhaps, ‘Ukraine’s true detectives‘) and investigative support from international NGOs such as Global Rights Compliance.

Structural investigations could include corporate accountability within their scope, supporting efforts to document and trace the drones and other foreign weapons deployed in Ukraine, and to gather evidence of the involvement of officers of foreign manufacturing companies, air transport and logistical firms, mercenaries and brokers in the commercial supply and transfer of items used by Russia to commit international crimes. Commencing these investigations now could be crucial to ensuring a broad spectrum of post-conflict accountability against different actors. By analogy, consider the post-World War II indictments of Nazi business leaders in the German industrialist trials in 1945-46, two of whom were eventually executed by a British Military Court for supplying the Zyklon B gas used in Auschwitz.

The post examines how unilateral and multilateral sanctions on corporations linked to alleged Russian atrocities could be backed up by, and better integrated with, criminal accountability. After summarising the alleged supply and transfer of Iranian drones, the post recalls well-recognized weaknesses in international sanctions and assesses accomplice liability under (international) criminal law, highlighting the need to consider whether prosecutions could and should include complicit sanctioned businesspersons.

Individuals allegedly involved in the supply of Iranian drones

Swarms of dozens of Iranian-design drones have been well-documented in indiscriminate attacks on civilian targets in Kyiv, Odesa, and the Kharkiv region, according to open-source information and Ukrainian investigators, ‘rain[ing] destruction on the country’s power grids and electricity substations, water pipelines, rail lines, dams, and other critical infrastructure’. Ukraine says it is extensively documenting and recovering several types of drones on the battlefield, primarily the Shahed-136 one-way attack drones (i.e. ‘kamikaze’ drones or ‘loitering munitions’), rebranded by Russia as ‘Geran 2’, as well as the smaller Shahed-131 model (‘Geran 1′) and Qods Mohajer-6, which can carry an explosive payload or be armed with precision-guided missiles. Ukraine has urged western support for more advanced missile-defense systems to counter the drones. Iran has admitted supplying drones to Russia but says it was only prior to the February invasion. However, at least some of the recovered drone parts used in attacks appear to have been manufactured or supplied subsequent to this date.

On 15 November 2022, the US Departments of State and the Treasury imposed sanctions ‘in response to Iran’s support of Russia’s unprovoked war against Ukraine, including Tehran’s transfer of unmanned aerial vehicles (UAVs) to Russia, which are being used by Moscow to strike civilian infrastructure and cities.’ The grounds for selecting these targets for sanctions is they are ‘enabling Russia’s use of Iranian-built UAVs to brutalize Ukrainian civilians’ and to carry out ‘devastating attacks against civilian infrastructure’. In other words, the US sanctions are imposed on the basis that drones are being supplied from Iran to Russia in the knowledge that they are significantly contributing to the commission of war crimes. 

The state organs, corporations and individuals included in this round of US sanctions are in three categories: (i) Iranian entities involved in the production or ongoing transfer to Russia of Iranian military UAVs, namely the Islamic Revolutionary Guards Corps Aerospace Force, for facilitating the supply of drones to Russia, and two Iranian manufacturing corporations, Qods Aviation Industries and Shahed Aviation Industries Research Center; (ii) The Wagner private military company and two Russian individuals involved in acquiring Iranian drones for Wagner forces to use in Ukraine; and (iii) two UAE-based air transport companies involved in transporting Iranian drones to Russia. These US sanctions followed prior EU and UK sanctions related to the drones, and European calls for UN investigations into the drones as breaches of UN Security Council Resolution 2231 on the 2015 Iran nuclear deal.

Western components in Iranian drones?

It subsequently emerged that Western-manufactured components are being found in the Iranian-designed drones. On 16 November 2022, Ukraine claimed to have recovered Iranian drones comprised mainly of parts manufactured in the US, EU, Japan, Israel and other allied states. Most of these western-made components would be prohibited for import into Iran due to sanctions, but were not on the manufacturing states export control lists. Some of these may be dual-use items that are not obviously exported as parts to assemble into drones (e.g. microchips or camera lenses). They could have been lawfully exported from the manufacturing state, avoiding sanctions, before being onward transhipped to Iran through an intermediary. Some components could be replica copies made in another state that has supplied them to Iran (or for assemblage in Russia), or even salvaged parts from Afghanistan from US drones.

Although the possible involvement of western companies in providing parts and components to Iran highlights a weakness in sanctions, it does not alter the primary allegations against the individuals most closely involved in transfers from Iran to Russia. While the indirect contributions of those who supplied western-made components eventually used in the Russian attacks could in theory be complicit too, their accomplice liability would be more remote. Their involvement in the supply of drones would be one further step removed physically and causally from usage in Russian attacks.

Effectiveness of sanctioning Iranian entities

Are international sanctions preventing military support to Russia? The US sanctions do not seem to have deterred Iranian activity, with reports on 21 November 2022 of increased cooperation with Russia in building more drones. Complex strategic questions arise as to whether international sanctions are successful in modifying the behaviour of sanctioned entities. Modern targeted sanctions seek to apply more nuanced coercive pressure than older types of comprehensive sanctions, but they are frequently violated, as the Iranian drones demonstrate. Greater criminal enforcement of sanctions offences (sanction violations, domestic customs and trafficking offences) could bolster their effectiveness.

Is it helpful to bring international criminal law into the picture? Its threat or use is unlikely to solve all weaknesses of the sanction system, and it is questionable whether it would add much to the existing deterrent effect of the sanctions in dissuading foreign corporations from supporting Russia. Yet holding individual businesspersons to account for complicity in international crimes (rather than for the sanction violation offences) would reflect the seriousness of the wrongdoing involved, as well as highlight the risk of individual punishment for complicit actors, and bring the possibility of reparations for victims. Moreover, it has been argued that international criminal prosecutions may have a stronger deterrent effect on commercial actors than those motivated more by ideology, since businesspersons make a more rational cost-benefit analysis before undertaking transactions.

In some scenarios, the careful selection of prosecutions against commercial individuals under international criminal law can back up the effectiveness of sanctions (consider the precedents of arms embargo-busters convicted for complicity). An international(ized) or domestic prosecution of those involved in supplying drones from Iran to Russia, knowing they are furthering atrocities against Ukrainian people, could represent the criminality of their actions, offering a potent emblem of the gravity and moral opprobrium attached to profiting from atrocity.

Potential complicity under international criminal law

What would be the legal basis for prosecuting foreign commercial actors who support Russia’s war machine, in situations where they have already been subject to sanctions?

Under customary international criminal law, an individual can be held responsible as an accomplice with an actus reus of a substantial (or possibly significant) contribution to the commission of a core crime and a mens rea of knowledge of the intentions of the perpetrators to carry out the crime (a legal standard which is increasingly interpreted as accepting risk-based factual assessments of knowledge). A similar standard of complicity would apply at the ICC, notwithstanding the purpose requirement of Article 25(3)(c) of the Rome Statute, due to the existence of the mode of liability in Article 25(3)(d)(ii). We do not have final binding authority from the ICC Appeals Chamber on the interpretation of these complicity requirements or their application in different scenarios, nor how the overlap between these modes of liability would operate in practice. This leaves substantial uncertainty in this regard; a dissuasive feature of these types of cases from a prosecutor’s perspective. 

In relation to the Iranian drones, a charge sheet at the ICC or another (inter)national criminal tribunal might allege complicity against any of the sanctioned individuals: (i) the directors of the Iranian corporations making the Shahed and Qods drones; (ii) the Russian nationals associated with the Wagner group; and (iii) the employees of the UAE-based air transport companies. The corporations cannot themselves be indicted at the ICC, but they can in some national jurisdictions.

Applying actus reus and mens rea

Based on the information referred to in the US sanctions decisions (cited above), it would be implausible for the Iranian, Russian or UAE businesspersons to plead ignorance of the end-use of the supplied drones in the commission of war crimes. At the latest by 15 November 2022, with the imposition of US sanctions, the individuals appear to be on notice as to the prohibited use of their items, not only in an unlawful Russian invasion but more specifically in indiscriminate attacks on civilian targets (also the extensive public allegations including open criticism of the exports within Iran).

For mens rea then, these suppliers appear to know full-well that the drones, while lawful per se, are being used in violations of international humanitarian law. Given that recent reports allege specific Iranian drone models, prominently the Shahed-136, Shahed-131, and Mohajer-6, with their particular technical capabilities, payload and range, are now being used in specific criminal incidents (attacks on Ukrainian civilian targets and water and energy plants in Kyiv, Odesa, and the Kharkiv region), it is likely those involved in supplying the drones are now well-aware of their use, even if they were not at the start of the invasion.

The alleged supplies from Iran could constitute a substantial contribution to war crimes under Article 8(2) of the Rome Statute. Single-use ‘kamikaze’ drones, which must necessarily be constantly replenished, appear to be essential to the modus operandi of the aerial attacks. Russia appears to be purchasing drones from abroad due to a lack of domestic low-cost production capability with Iran as the primary (or even sole) supplier. As an evidentiary matter, establishing actus reus would probably be more straightforward than it would if Russia was buying from multiple sources. This avoids some of the difficulty of a common sticking point in establishing accomplice liability – multiple causal contributions. If Iranian drones were being used alongside many other models, it would be harder to demonstrate a nexus between particular shipments from Iran and particular acts of damage in Ukraine, and to trace the drones through the supply chain of sanctioned individuals.

As Linde Bryk and Göran Sluiter point out, a broad range of corporate cooperation with Russia could attract allegations of complicity: ‘delivery of weaponry or any military equipment to the Russians after 2014 [is] by definition problematic, regardless of whether an embargo was in place‘. Within this range of military support, the Iranian drones offer a potent example of individual contributions with a demonstrable nexus to unlawful Russian attacks, which might be specific enough to satisfy the actus reus of criminal responsibility, as well as potential mental awareness that would be sufficient for mens rea.

Numerous legal and practical hurdles?

Whether the Iranian, Russian or UAE individuals in the recent US sanctions could be obtained pursuant to arrest warrants is currently unclear (although the third category of individuals are sanctioned in cooperation with UAE authorities). At some future time, any of these individuals could become amenable to arrest by (or extradition to) a prosecuting state. This is all of course subject to the potential applicability of immunities. In any case, a lack of immediate availability is no more a barrier to investigating these suspects than it is for other ongoing Ukraine investigations against Putin’s inner circle. 

There are further questions as to the potential jurisdictional scope of the ICC, Ukrainian courts, or other national or international(ized) tribunals, possibly acting under principles of universal jurisdiction. Even though Ukraine is not a State Party to the Rome Statute, the situation referral would provide for ICC jurisdiction over individuals involved in the commission of alleged Russian war crimes with drones on Ukrainian territory. Those who provide support from afar, by facilitating the production or transfer of drones to Russia while operating on the territory of a non-State Party (e.g. Iran or the UAE), pose a different question. Can assistive conduct from outside ICC jurisdiction be considered part of the ‘commission’ of the crime in Ukraine? This is an open question not directly addressed in the Court’s existing jurisprudence. However, jurisdiction would probably exist where the principal commission takes place in Ukraine.

I have focused in this blog post on the clear links to war crimes, but complicity in the crime of aggression is another potential avenue for accountability. While not available in ICC jurisdiction in relation to Ukraine, there is potential for a special tribunal for Russian aggression (with a role for the General Assembly, as Michal Ramsden and I discussed). The statute of such a tribunal could recognize the complicity of commercial actors in aggression.

How about other actors? Iran is not alone in triggering international concern over military support for Russia, following allegations about North Korean and Venezuelan support. Belarus provided a staging ground for the Russian invasion, although so far avoided its troops entering the war. China appeared to refrain from providing military assistance to Russia after concerns were voiced in March 2022 that Russia had requested Chinese support, as I discussed here. In this regard, there is also potential for State responsibility for aid or assistance in Russia’s internationally wrongful acts.

Beyond the scope of this blog post, there are also the highly influential commercial actors within Russia who are often omitted from the Ukraine accountability discussion. The directors of state-owned and private Russian companies who have worked together with Putin to plan and facilitate the war could be accomplices too. In the same vein as the attempts at Nuremberg to prosecute the ‘German industrialist trials’ in 1945-46 that sought to demonstrate the criminal complicity of commercial interests in supporting the Third Reich and profiting from Auschwitz and other concentration camps, the post-Ukraine accountability mechanisms could target the ‘Russian industrialists’. While the American and British military tribunals after the Second World War sought to represent the criminality of the commercial interests that had fuelled, exacerbated, and profited from Nazi aggression and the Holocaust. A similar approach could be taken to international criminal accountability today.

Lastly, the prospects of establishing criminal complicity would change if commercial actors were found to be directly involved in Russian operations on the ground. The presence of Wagner group individuals is one scenario. The American claims from 20 October that Islamic Revolutionary Guards Corps had been sent to Ukrainian territory to assist Russian forces in using the Iranian drones on the ground is another scenario that would strengthen a claim of complicity. The physical and causal proximity of the alleged Iranian personnel to the commission of crimes (perhaps even involved in organizing indiscriminate drone attacks on civilian targets by helping with operations and launches) could provide strengthened evidence of both mens rea and actus reus.

Recommendation: International and Ukrainian investigations should consider the potential liability of commercial actors

The Ukraine conflict has triggered unprecedented US and renewed international support for international criminal justice mechanisms (as detailed in Sergey Vasiliev’s must-read analysis of this watershed moment). Yet one of the questions that remains is how narrowly construed will be the accountability mandate of the international and national forums that select cases for prosecution, not only in vertical terms (whether to prosecute only high- or also low-ranking individuals), but also horizontally (prosecute only the military and political figures who initiated the invasion of Ukraine, or also the more peripheral actors who contribute structurally to prolonging and exacerbating the armed conflict?).

Structural investigations in national jurisdictions into the Ukrainian conflict are collecting evidence relating to the situation as a whole, without selecting cases. But they can be operative in ensuring that a wide range of cases remain possible when accountability arrives. Individuals sanctioned by the US, EU, UK and other states could be included in the dockets of international, Ukrainian and other national investigators, building criminal cases against commercial actors by collecting evidence of non-Russian weapons deployed on the battlefield, data on the transfer of these items to Russia, as well as their potential role on the ground in Ukraine.

The expressive effect of these cases could be profound. Making drone cases part of the ICC investigations would reflect the emerging nature of drone warfare in the early 21st century and the critical role of technology supplies in enabling Russia’s current military strategy, with its arguably intentional psychological effect of terrorizing civilians through the horror of incoming ‘lawnmower’ kamikaze drones.

Conclusion

The broader question is whether, alongside Russian political and military figures, the funders and profiteers of Putin’s war should also face criminal accountability. A host of challenging legal, political and pragmatic obstacles must be carefully considered.

At the moment, international and Ukrainian investigations already have their hands full documenting evidence of alleged war crimes and the role of different Russian military units, while ICC prosecutorial policy will naturally tend towards a focus on Putin’s inner circle. Even if legally possible, Prosecutor Karim Khan is unlikely to prioritize prosecutions of ‘little fish’ (although he could, legally, and others might). Civil society will probably be dominated by the narrative of Putin as all-powerful, and therefore all-responsible, rather than considering more structural causes of the war. In the event of regime change in Russia, western states would likely be concentrated on establishing the guilt of ‘the major war criminals’, and even if the political and prosecutorial appetite exists for cases against business actors, it is unclear whether these prosecutions would achieve the normative aims of international criminal justice, in terms of retribution, deterrence, and reparation to victims.

Yet, the production and transfer of Iranian drones presents one of the most compelling scenarios of corporate complicity in Ukraine since 2014. The sanctions on military support to Russia identify specific individuals and appear to establish a clear factual link to indiscriminate Russian attacks against civilians. And it is this close causal nexus, combined with the undeniable awareness of alleged war crimes, that may provide fertile grounds for an important and expressive criminal prosecution.

Leave a Comment