Complicit in destruction: the potential criminal responsibility of those funding or profiting from Russia's war has received limited attention. Image: diy13 / Adobe Stock
For future war crimes trials in Ukraine to succeed, it is essential to give thought to how they can address the responsibility of those who fund, or profit from, Russia’s war in Ukraine.
Russia’s widespread attacks against civilian infrastructure in Ukraine, coupled with its army’s brutal treatment of Ukrainian civilian population, continue to galvanise discussions about the prosecution of those responsible in international and/or domestic courts. So far, little attention has been paid to the potential criminal responsibility of those who fund the war, including by bankrolling Russia’s so-called private military companies, or profit from it, such as by obtaining lucrative construction contracts in Russian-occupied areas of Ukraine. This is a surprising omission given the significance of the issue.
The State of Play
First of all, it is useful to outline the background. Ukrainian courts are entitled to try war crimes and crimes against humanity committed in Ukraine’s territory, and have been doing so already. As of April 2023, 80,000 war-related criminal investigations were reportedly afoot in Ukraine, with over 4,000 cases having reached the courts. The first conviction was recorded as early as in May 2022.
At the same time, the International Criminal Court (ICC) is investigating potential crimes committed in Ukraine. Its jurisdiction in Ukraine is limited to three broad types of crimes of international concern: genocide, war crimes and crimes against humanity. The latter two are umbrella terms that encompass a wide variety of criminal conduct. In the context of crimes against humanity, the ICC has issued arrest warrants against Russia’s President Vladimir Putin and Children’s Rights Commissioner Maria Lvova-Belova for their involvement in the mass deportation of Ukrainian children to Russia.
Lastly, the third major strand of ongoing accountability efforts has concerned the establishment of an additional, dedicated tribunal adjudicating international crimes committed in Ukraine. One reason for that is to enable trials for waging aggressive war. The crime of aggression is another crime within the ICC’s jurisdiction, but for legal reasons this particular crime is off limits to the ICC in Ukraine. Yet, of course, it is precisely the crime of aggression that is at the core of the ensuing tragedy and most directly linked to Russia’s top leadership, including Putin.
So far, little attention has been paid to the potential criminal responsibility of those who fund the war or profit from it
The proposal to establish a self-standing aggression tribunal has garnered heavyweight expert support. Still, there are dissenting voices. Some fear that the idea is fraught with the risk of undermining the ICC’s authority, or will perpetuate the narrative that the vigorous global response to Russia’s war on Ukraine stands in contrast to the grudging acceptance of other conflicts. And, even if the basic proposition is accepted, disagreements remain as to whether a new tribunal should be embedded within Ukraine’s justice system – a so-called ‘hybrid’ format – or function independently of Ukraine on the international level.
War and Money
With this background in mind, let us consider the implications for those funding and profiting from Russia’s war in Ukraine.
The slightly bizarre Russian proverb, loosely translated as ‘one man’s war is another man’s dear mother’ and referring to wartime profiteering, no doubt holds true in this war. For instance, in abandoning its erstwhile pretence that the Russian government had nothing to do with the Wagner Group, Putin publicly acknowledged funding it to the tune of $1 billion over the past year alone. Other private and public funders, from enterprising oligarchs to Russia’s state-owned energy company Gazprom, have established their own private military companies – all requiring, no doubt, a significant injection of money, as well as creating opportunities for the enrichment of the men running them.
Concurrently, Russia has been engaging in wholesale and systematic plunder of Ukraine’s resources. The pattern first became apparent with the annexation of Crimea in 2014, which saw Ukrainian state-owned and privately-owned enterprises transferred to Russian ownership. This resulted in, among other things, Ukraine’s successful claims against Russia in international investment arbitration proceedings, which continue to face formidable enforcement challenges. Then, Russia’s proxy takeover of Ukraine’s eastern territories of Donetsk and Luhansk enabled it to divert Ukrainian coal to Russia. Most recently, Russia’s theft of Ukrainian grain from the occupied territories, combined with methodical attempts to bomb out Ukraine’s own remaining agricultural capacities, has exemplified Russia’s attempts to profit from the war while destroying Ukraine’s economy.
All of these actions and policies, as well as innumerable others of similar description, give rise to classes of beneficiaries from among those ensconced within Russia’s war economy, such as the intermediaries involved in the trade of Ukrainian grain, recently sanctioned by the UK, or contractors vying for construction projects in the wasteland that Mariupol has become. On the other hand, there are those who parlay their wealth into, presumably, greater influence with Putin by bankrolling his war.
Funding international crimes, as well as providing material supplies such as weapons in support of them, can be a form of complicity under international criminal law
The potential moral and legal responsibility of all those people for the crimes in Ukraine is a crucial, yet largely overlooked, issue. Historically, these are not altogether uncharted waters. As explored in an excellent book edited by Nina H B Jørgensen, funding international crimes, as well as providing material supplies such as weapons in support of them, can be a form of complicity under international criminal law. As some of the book’s chapters discuss, demonstrating that the funder knew their actions would assist the commission of a crime is likely to be the crucial hurdle, albeit one that can no doubt be satisfied in some circumstances. Conversely, ‘merely’ profiting from international crimes does not, in and of itself, trigger international criminal responsibility.
There may, therefore, be a disconnect between the moral and political assessment of war profiteers’ and, in some cases, funders’ role in Russia’s war in Ukraine and their legal responsibility. Some of them will no doubt be caught by existing rules, such as those who directly run private military companies that commit war crimes under their command. Others, such as those involved downstream in the theft and transfer of Ukrainian grain, may be left out.
For a complete legal assessment, one would need to study potential international crimes committed in Ukraine one by one – from murder to pillage, and beyond – and consider how financial involvement in them interacts with existing complicity rules. It would seem the need for such analysis is urgent, which is a task that governments and academics alike could usefully undertake.
If a bespoke Ukraine war crimes tribunal was established, particularly complex issues would arise. On the one hand, its statute could in principle provide for dedicated rules covering the funding of, or profiting from, international crimes committed in Ukraine. This would be consistent with the tribunal’s overarching objective to bring to accountability those with the greatest power over, and responsibility for, the war. On the other hand, in doing so, one would need to be careful to respect the fundamental legal principle that one cannot be liable for conduct that did not constitute a crime at the time it was committed. Overall, this is a matter that merits far greater prominence in the development of the emerging plans for bringing those responsible for Russia’s crimes to account.
The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.
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Associate Fellow; Lecturer in Law, Australian National University