International crimes (war crimes, crimes against humanity, genocide and aggression) are possible because large numbers of individuals and entities fund their commission or profit from them, often with impunity. In Europe, this includes those who fund or profit from Russia’s international crimes in Ukraine. Existing responses to such criminal complicity are inadequate in several key respects:
Political commitment to addressing the problem is weak and fragmented. There is no coherent policy focus on financial involvement in international crimes. Civil society advocacy occasionally leads to ad hoc efforts against the financing of specific conflicts, e.g. South Sudan-related investigations in the UK and Australia. This has not yet translated into a sustained focus on economic complicity in international crimes.
International criminal law responses are currently ineffective. Despite preliminary efforts, the International Criminal Court (ICC) is yet to develop a strong financial investigation capacity. Nor has it delivered any substantial reparations to victims of international crimes. More broadly, its prosecutorial functions have been criticised as of insufficient quality or quantity. These criticisms, whether justified or not, require a renewed focus on the ICC’s ability to bring to account those most responsible for international crimes, including funders and profiteers.
There is an accountability gap in addressing the role of funders and profiteers in connection with Russia’s aggression against Ukraine. The newest international criminal accountability mechanism, the Special Tribunal for the Crime of Aggression against Ukraine, does not incorporate a clear focus on the economic aspect of the aggression.
Anti-money laundering and counter-terrorist financing (AML/CTF) responses are promising but under-utilised. Neither the global standard-setter, the Financial Action Task Force (FATF), nor domestic AML/CTF regulators have made available any resources at this stage that would alert regulated businesses to money-laundering risks, typologies or red flags associated with proceeds or instrumentalities of international crimes. As a result, regulated sectors’ collective ability to detect financial flows related to international crimes remains under-utilised.
Sanctions, while useful, are an incomplete and limited response. In part, this is because sanctions only identify a subset of those who are economically involved in international crimes. Furthermore, current sanctions compliance practices often fail to effectively identify property indirectly held by sanctioned persons, or prevent transactions carried out via third parties or nominees.
In light of these deficiencies, we call on governments to express a high-level political commitment to bringing to account those who fund or profit from international crimes. This will elevate the profile of the issue, set the tone for concrete law enforcement and regulatory action (see below) and signal to those involved that they will face the consequences of their actions.
In order to deliver on this high-level commitment, governments and regulated businesses, supported by academic and non-governmental experts, should implement the following solutions across the three key domains: (a) international criminal justice; (b) AML/CTF; and (c) sanctions.
International criminal justice solutions involve (a) states parties to the Rome Statute of the ICC working with the Office of the Prosecutor to improve the ICC’s financial investigation capacity and strengthen its focus on the investigation and prosecution of economic complicity in international crimes; (b) the Special Tribunal for the Crime of Aggression against Ukraine undertaking investigations and prosecutions against key economic enablers of Russia’s aggression; and (c) individual states pursuing investigations and prosecutions against those who fund international crimes or profit from them, as well as confiscating proceeds and instrumentalities via criminal and/or civil (non-conviction based) litigation. We emphasise that prompt domestic action is essential.
AML/CTF solutions involve (a) international agencies (e.g. the FATF and EU Anti-Money Laundering Authority) and domestic AML/CTF regulators identifying money laundering associated with international crimes as a priority area; (b) domestic AML/CTF regulators, Financial Intelligence Units (FIUs), law enforcement agencies and public-private partnerships identifying and disseminating typologies and red flags associated with funding international crimes or profiting from them; and (c) regulated businesses, especially banks, drawing on both publicly available and internal information to bolster their capacity to detect and report the proceeds and instrumentalities of international crimes. Effective sharing of information, domestically and internationally, is crucial to the success of these solutions.
Sanctions solutions involve (a) whenever possible, governments imposing sanctions on the basis of involvement in international crimes (including economic involvement), rather than more generic sanctions criteria, such as being affiliated with a particular government; and (b) domestic sanctions implementation agencies, AML/CTF regulators, FIUs, law enforcement agencies and public-private partnerships identifying and disseminating sanctions evasion typologies and red flags, especially those related to sanctioned persons allegedly involved in international crimes.
These solutions are distilled in the enclosed Accountability for Economic Complicity in International Crimes: 10 Principles that we call on governments to endorse and implement. The Principles were drafted by a group of academic experts, international criminal justice practitioners and non-governmental organisations listed below, and informed by a series of workshops and meetings in Brussels, Canberra, London and The Hague.
Accountability for Economic Complicity in International Crimes: 10 Principles
This document sets out the principles that the international community should follow to address economic complicity in international crimes. They are based on the premise that funding international crimes or profiting from them should be treated as serious criminal conduct and should lead to compensation for victims.
The ten principles below include three foundational principles that set out the objectives that the international community should pursue in addressing economic complicity in international crimes. The seven implementation principles lay out the strategies designed to achieve these objectives.
Foundational Principles
Those who recklessly or knowingly fund international crimes or profit from them share responsibility for the atrocities and should therefore bear criminal responsibility for their actions.
International criminal law and domestic laws should criminalise recklessly or knowingly funding international crimes or profiting from them. This can be done through the application of general complicity rules or distinct ‘funding or profiting’ offences.
Proceeds and instrumentalities of international crimes should be used to provide reparations for victims of international crimes. Prosecutions of those who fund international crimes or profit from them should be prioritised to enable asset recovery and the payment of reparations.
Implementation Principles
Any international criminal tribunals or analogous bodies established in the future should include in their statutes provisions on the criminal responsibility of those who recklessly or knowingly fund international crimes or profit from them.
States parties to the Rome Statute of the International Criminal Court should assess and strengthen the ICC’s legal and practical capability to bring to account those who fund international crimes or profit from them. To achieve this, the ICC should develop a roadmap to address deficiencies in current practice and procedure.
States should assess and, if appropriate, amend their domestic legislation to enable the prosecution of those who recklessly or knowingly fund international crimes or profit from them.
States should ensure that their laws relating to money laundering and the proceeds of crime fully cover the proceeds of international crimes, and that their AML regulators, supervisors and regulated entities are fully aware of financial crime typologies related to proceeds of international crimes.
Financial investigation should be integrated into domestic and international investigations of all international crimes.
Targeted financial sanctions should be used vigorously in response to credible evidence of economic complicity in international crimes. Their use should be a first step towards, not a substitute for, criminal prosecutions and asset confiscation.
The Financial Action Task Force and EU Anti-Money Laundering Authority should support domestic and international efforts to ensure the accountability of those who fund international crimes or profit from them, including by highlighting the recovery of the proceeds of international crimes as a key focus of efforts against financial crime.
Endorsers
Institutions
● B4Ukraine
● Centre for Finance and Security at the Royal United Services Institute (RUSI)
● Institute for International Criminal Investigations
● LexCollective
● Truth Hounds
Individuals
● Lord (Alex) Carlile, Baron Carlile of Berriew, CBE, KC
● Professor Nina Jorgensen, University of Southampton
● Associate Professor, Dmytro Koval, National University of Kyiv Mohyla Academy and Co-Executive Director, Truth Hounds
● Dr Anton Moiseienko, Australian National University Law School
● Honorary Professor Matthew Neuhaus, Australian National University Law School
● Professor Cedric Ryngaert, Utrecht University
● Oliver Windridge, rights:applied
If you wish to endorse these Principles, please contact [email protected].