Jill Coster van Voorhout joins JiC on this post examining the intersection between international criminal law and transnational criminal law. Jill is an Associate Professor of International and Transnational Criminal Law at the Faculty of Law, University of Amsterdam and a research fellow at the Amsterdam Center for Criminal Justice, the Amsterdam Centre for International Law and the Institute for Advanced Study.
“We are coming for your ill-begotten gains”, President Biden said during his 2022 State of the Union about his plans to seize yachts and luxury apartments from influential Russians with wealth parked in the United States. “Putin, The Hague is waiting for you” has been spray-painted on the road opposite the Russian embassy near the Lithuanian capital Vilnius. While both are resonating sentiments, they also serve as helpful illustrations of how discussions about transnational criminal law (TCL) and international criminal law (ICL) develop in parallel and with little interaction. These siloed approaches are unhelpful, because confiscated assets can be used as (financial) evidence for crimes committed in Ukraine and abroad, especially if the proverbial paper trail can be followed to those most responsible for the Russian invasion of Ukraine and the atrocities that we see daily.
This post is a call for an integrated TCL-ICL strategy. But it should not be misunderstood as though either field of law or their combination is a panacea, nor that they should replace political, economic and, most importantly, diplomatic tools. Rather, it is a request to specialists and students of TCL and ICL to think of what Hannah Arendt labelled “renewal” – our collective power of thinking of a better international rule of law.
President Putin’s Achilles’ Heel – His War Chest and Foreign Assets
Russian President Vladimir Putin’s Achilles’ heel could well be his war chest in the foreign reserves of the sanctioned Russian central bank and assets funnelled to countries with a stronger rule of law that offer legal protection. Putin could not hold such assets himself – and certainly not in his own name. For years, funds from the Russian State were syphoned out of the country through laundering schemes and was then spent in a small number of wealthy stable countries. This is why effectuated and announced sanctions against Russia include shutting the government and banks out of global financial markets, restricting technology exports and freezing and confiscating assets of influential Russians.
While this focus is important, we must also realize that we currently live in what Oliver Bullough has labelled “Moneyland”. Money is borderless, while law stops at borders. Our best source of evidence of this free international flow of money is the few criminal prosecutions and relevant document leaks such as the Panama Papers, FinCEN Files, Paradise Papers, and, more recently, Suisse Secrets. Against this backdrop, we see a State like Switzerland, notorious for its banking secrecy during World War II and Russia’s annexation of Crimea, implement the above-mentioned sanctions. Legal, accountancy and tax firms also announced they ended their relationship with Russia’s government.
These efforts to try to turn off the lifeblood of the Russian invasion of Ukraine leave us with three significant questions: (i) who has made Russian money flow out of the country and who has helped this flow? (ii) how can money flowing back into Russia where it will be used to fund the invasion be stopped? and (iii) in the long-run, what can be done to ensure that this does not happen again?
Ukraine’s Calls for International Justice
Ukraine is already a relevant actor in international justice and accountability. In 2014, the country accepted jurisdiction of the International Criminal Court (ICC) and, amidst the current conflict, has petitioned the International Court of Justice and the European Court of Human Rights. The role of the ICC, the proposed ad hoc special tribunal for aggression, investigative mechanisms, and domestic prosecutions of core crimes under universal jurisdiction have already been well-documented by scholars.
Although this is often forgotten, there is historic precedence for an “economic case”. In The Anatomy of the Nuremberg Trials, Telford Taylor described that the theory of this case was that “[t]he guilt of the industrialists and financiers, (…) was that they had given Hitler the material means to rearm Germany, with full knowledgethat Hitler planned to use these armaments to carry out his program of German aggrandizement by military conquest”. However, as Taylor also argues, “of course proof of criminality depended entirely on finding evidence that the ‘economic defendants’ had sufficient knowledge of Hitler’s plans, and shared sufficiently in his criminal purpose, that they might properly be convicted as co-conspirators with the Nazi leaders.”
At the time, the Prosecution already felt that public officials like a president of the central bank or government minister would be listed in public records that would tie them to a dictator’s plans. More concern was felt for charging private business tycoons, because the evidentiary prospects were at best uncertain. The Nuremberg tribunal acquitted Hjalmar Schacht who had been, inter alia, the president of Germany’s central bank twice and a minister of economics. But it convicted his successor, Funk, although not for participating in a common plan or conspiracy. However, the tribunal did not have the benefit of the tools available under TCL or of more recent case law that lays the groundwork for criminal liability of financiers and profiteers, in addition to direct perpetrators, such as Milošević, Perišić, Šainović, Taylor, and at the domestic level Van Anraat and Kouwenhoven.
A paradigm shift
The ICC claims that stronger asset recovery facilitated by financial investigation is ‘vital to the effective execution of [the ICC’s] mandate and delivery of justice’. The ICC’s Office of the Prosecutor (OTP) realizes the urgency of combining TCL and ICL. For example, while the ICC’s Registry found that former President Jean-Pierre Bemba of the Democratic Republic of Congo was partly indigent and provided him legal aid, the above-referenced FinCEN Files investigations indicated that “the timing of some of the payments included the period of alleged witness tampering for which Mr. Bemba was standing trial”. In the Gicheru and Bett Case, seizure of financial or banking records and other relevant information were requested to prove the crime of corruptly influencing Prosecution witnesses. Also, the OTP appears to have developed models for carrying out financial investigations alongside core crime investigations in the Central African Republic by taking business networks and armed groups and asset tracing in consideration early on.
Conclusion – On “Renewal”
In its investigation of the situation in Ukraine, the OTP could immediately pursue an integrated TCL-ICL strategy. For this, the OTP should be able to count on at least the unprecedented number of States Parties which have referred the situation in Ukraine to the ICC, as well as all other countries that agreed to the economic and financial sanctions on Russia. Those States could set up an ad hoc tribunal, create corresponding investigative mechanisms, and pursue, to the extent that they have jurisdiction, structural investigations that combine TCL and ICL. This can enable the discovery of evidence, including of patterns relevant for contextual elements like planning or policy-making and the widespread nature of an attack, as well as linkage evidence all the way to those who are most responsible for crimes committed.
To conclude, I add four thoughts that need to be kept in mind when combining TCL and ICL in the context of Ukraine. First, we should seek to go after those who are most responsible for this invasion of Ukraine and not indiscriminately punish the general Russian population through non-targeted sanctions. This also means that the sanctions lists of the U.S., the European Union, and joining countries must be synthesized; a person or company cannot be legitimately put on one list but not on another. Also, Russia must be denied access to financial intelligence so that financial investigations are conducted confidentially.
Second, the current sanctions do not yet target heads of intelligence and military, secret services officials and bodyguards who together with Putin came up with the plan of Ukraine’s invasion and are not invested in the countries that sanction Russia. We also need to find their paper trails.
Third, we may need to swallow the bitter pill of demanding that the facilitators of the money laundering schemes, who will have used bank secrecy and/or legal privilege, not face justice and instead enlist them to help locate these assets. Without such specific knowledge, it seems very difficult to design targeted sanctions that ensure effective resistance in Russia to the invasion of Ukraine. In the legislation laying out the sanctions, a clause can be adopted that requires facilitators to come forward with such information under the threat of a penalty of a fine and imprisonment for their failure to do so. Under anti-money laundering legislation, entities are then required to report suspicious transactions pertaining to sanctioned Russian persons and companies and their use of shell companies and other money laundering tools.
Finally, while countries and multilateral organizations consider and implement immediate actions to aid Ukraine, they must in parallel pursue structural anti-money laundering reforms to increase the effectiveness of targeted sanctions and to end the weaponization of the legal and financial systems against democratic and open societies.
Justice doesn’t mean just going after perpetrators of core crimes, but the means that fund them