Editor’s note: This is part of our series discussing reparative measures for victims of international law violations in the conflict in Syria, through the establishment of an intergovernmental victims fund or other means.
U.S. Deputy Attorney General Lisa Monaco recently announced at the Munich Security Conference that the United States transferred nearly $500,000 in forfeited Russian funds to Estonia for the benefit of Ukraine – marking the first transfer of its kind from the United States to a foreign ally for the express purpose of assisting Ukraine, which has suffered from Russia’s unlawful aggression. As stated in the Department of Justice press release, “the Department and its international partners will seek and develop novel solutions to ensure that the profits of Russian criminal networks are redirected for the support of the Ukrainian people.” This is commendable, and comprises just one part of the recent groundswell of creative thinking on reparations, recovery, and support for Ukrainian victims.
But has DOJ applied a coherent, transparent approach when it comes to atrocity-linked assets in other contexts, including Syria, which is over a dozen years into a conflict that has been equally marred by serious violations of international law? The simple answer is no – but it could. As Just Security readers will recall, DOJ is currently sitting on over $600 million assets forfeited in its criminal case against Lafarge S.A. and its subsidiary, with analogous discretion to direct these funds to benefit victims. DOJ should take a consistent approach, ensuring that the millions of forfeited assets linked to material support for terrorism in Syria do not simply enrich the U.S. Treasury.
Parallels Between the Two Forfeitures
Both scenarios involve asset forfeitures stemming from corporate liability for conspiracy offenses with significant security ramifications. The nearly $500,000 in Russian funds stemmed from Estonia-based company By Trade OU pleading guilty to conspiring with companies based in Latvia and Russia, among others, to illegally export a high-precision jig grinder to Russia, where it could have been used in nuclear proliferation and defense programming – at a time when Russia is engaged in aggression and atrocity crimes in Ukraine. The $687 million Lafarge forfeiture stems from the France-based company pleading guilty to conspiring to provide material support to terrorism by paying the Islamic State in Iraq and Syria (ISIS) and Al-Nusrah Front (ANF) from 2013 to 2014 to keep a cement plant in Northern Syria operational – all while the terrorist organizations were perpetrating brutal atrocities against civilians, primarily in Syria and Iraq.
In both instances, Estonian and French authorities provided substantial assistance to the respective U.S. investigations, thus paving the way for an intergovernmental, coordinated approach to the disbursement of the forfeited funds. A multilateral approach is particularly advisable given the barriers to directing the forfeited assets directly to the Ukrainian and Syrian people respectively. In the Russia/Ukraine case, DOJ explained that the funds were being transferred to Estonia “since under current authorities, the facts of this case do not allow for a direct transfer to Ukraine” – seemingly because Ukrainian authorities did not help with the investigation and therefore DOJ could not invoke its international sharing program to distribute funds directly to Ukraine.
The Lafarge case raises a similar question of how the forfeited funds could benefit victims of ISIS and ANF crimes in Syria. Transferring the funds to the Syrian government is out of the question, as the Assad regime remains the primary perpetrator of serious ongoing international law violations. Moreover, DOJ would face the same challenge as with the Ukraine-linked funds – international sharing with Syria is unavailable because the government did not help with the Lafarge investigation. In contrast, international sharing with France, for the benefit of Syrian victims, remains a possibility, as France, like Estonia, assisted in the investigation.
DOJ Should Apply a Consistent Victims-Centered Approach to Its Discretion
In the Russia/Ukraine case, DOJ ultimately decided to transfer nearly $500,000 of forfeited funds to Estonia for the benefit of Ukraine, with Estonia agreeing in the applicable international sharing agreement to deploy the confiscated funds to expedite a damage assessment and critical repairs to Ukraine’s electrical transmission and distribution infrastructure. Notably, DOJ acted on its own discretion – separate from Congress’s prior authorization to transfer seized Russian assets to support Ukraine through State Department assistance. As Monaco explained, although DOJ will continue working with Congress to expand its authority to transfer forfeited assets to Ukraine, in the interim, “we are not waiting for Congress. The Justice Department will use its existing authorities to support Ukraine’s response.” She further underscored how DOJ “will continue pursuing creative solutions to ensure the Ukrainian people can respond and rebuild. Dollar by dollar. House by house. Town by town.”
DOJ should adopt a similarly creative approach to the Lafarge forfeiture for the benefit of the victims of Lafarge’s crimes in Syria. As colleagues have previously observed in the context of Lafarge, the Attorney General enjoys significant discretion to use forfeited assets to restore underlying victims in the interest of justice. Just as DOJ transferred funds to Estonia to benefit the Ukrainian people, it could transfer the Lafarge funds to France to help benefit the Syrian people. Indeed, there are already indications that DOJ will transfer a portion of the Lafarge forfeiture to France due to the investigative assistance of French authorities. Separately, France has also confiscated over €90 million of domestic assets belonging to President Bashar al Assad’s uncle Rifaat al Assad, and has been exploring how best to return these resources to the Syrian people. It is thus well positioned to partner in a broader scheme to direct funding for the benefit of victims in Syria.
As part of an international sharing agreement with France, the United States could facilitate disbursement of the Lafarge forfeiture through an intergovernmental Syria Victims Fund, as proposed in this series. The establishment of such a fund was just recommended by the European Parliament last week and could be used to pool and disburse U.S., European, and other foreign forfeiture orders, monetary judgments, damages, fines, and penalties linked to international law violations in the conflict in Syria. Of course, recognizing the wide range of violations that continue to be perpetrated by a range of actors in Syria, any fund or disbursement strategy should be designed in meaningful consultation with a diverse cross-section of victims groups, Syrian civil society, and affected communities. This could include programs to help rebuild communities devastated by the crimes of ISIS and ANF, which were in part enabled by the payments received from Lafarge.
Lessons Learned from Past Missed Opportunities
DOJ has a unique opportunity before it to adopt a victim and survivor-centered approach and a coherent, principled policy to its disbursement of asset forfeitures, particularly when it comes to foreign victims of the underlying violations – an oft-neglected class under U.S. law. In doing so, the United States can counteract the growing public perception of a double standard when it comes to its response to the Ukraine war compared with other pressing conflicts.
The United States has missed similar opportunities in the past. The 2014 landmark criminal case against the French financial institution BNP Paribas S.A. resulted in a nearly $9 billion forfeiture after the company pleaded guilty for systematic sanctions violations on behalf of Sudanese, Iranian, and Cuban entities – all while their governments facilitated grave human rights and terrorism abuses, including the crime of genocide that Secretary of State Colin Powell found had been committed by the Sudanese government against ethnic minorities in Darfur. Regrettably, as previously explained in Just Security, although some of the funds were supposed to be directed to victims in the sanctioned countries, no such disbursement or victims compensation fund was ever realized. A significant portion of the forfeiture funds ultimately helped finance the U.S. Victims of State Sponsored Terrorism Fund and September 11th Victim Compensation Fund, vital mechanisms for U.S. terrorism victims, but ones that have continued to leave foreign victims of the original, underlying BNP Paribas violations without remedy or reparation.
One of us previously served as a United States Attorney (NDIA, 1993-2001) and a Member of the Attorney General’s Advisory Committee on Victims’ Rights and Protections before becoming an international prosecutor and diplomat. He has seen firsthand how effective DOJ can be in promoting a victim and survivor-centered approach at all levels of the justice system. With the Lafarge recovery, Attorney General Merrick Garland can ensure that the victims of ISIS and ANF atrocities benefit from the asset forfeiture and demonstrate that in U.S. federal law enforcement it is the victims who come first.