Criminology of War and Criminal Policy of the European Union
Luis Arroyo ZapateroHonorary Rector of Universidad de Castilla-La Mancha, President of the International Society of Social Defence
For over a year now, we have been witnessing a war broadcasted live on television. If images were for the first time shown live from the conflict zone during the Balkan wars, the situation today is different: we have not only live broadcasting and daily information, but also images captured and dispersed by thousands of cell phones. It is a war of spectacle. It is a traditional war, albeit with new technological and destructive means—notably drones and sophisticated missiles—but also a so-called ‘hybrid’ war, because it combines military action with cybernetics and economics, but also with the manipulation of energy and raw material distribution; a war described by Louis Gautier as ‘bastard’. 1
What we can all witness clearly is the indiscriminate civilian casualties and the conscious and systematic destruction of basic civilian infrastructure such as hospitals and thousands of apartment buildings, the huge convoys of homeless women and children. All of this arouses a grave emotion, solidarity and the desire to cooperate effectively to defend the victims of a criminal aggression. ‘This war is politically and emotionally unbearable,’ said Alexandra Sukhareva, a Russian artist. She was scheduled to exhibit her work at the Venice Biennale, but couldn’t attend, because the war has triggered emotions that upset the reasons of cultural life. Many activities and interventions were cancelled, and some had to be abandoned. Russophobia is there: Russia is guilty! All this is favoured not only by the war (and the bestial way in which it is carried out), but also by the personality of its leader: an autocrat with hints of psychopathy. 2
Europe has been a permanent battlefield since 1808, the date of the Napoleonic invasions. Since the Crimean War, with Russia on the one hand, and Turkey, France and England on the other, followed by the Franco-Prussian War, and then the First World War, which quickly gave way to the Second World War, it is almost always the same thing: in the West, the urge to invade France, the Ruhr, to seize coal and steel; in the East, the urge to seize Ukraine, the breadbasket of Europe and the conquest of the living space, Lebensraum. Indeed, over the last five hundred years, almost all European countries had their borders modified by wars, from Russia to the United Kingdom. Only Spain and Portugal have been spared—although not by civil wars. But today’s war marks the return of inter-state conflict with territorial pretensions in Europe, a figure last seen in 1945; it is above all a crime of aggression, and its conduct results in many war crimes and crimes against humanity.
1- Criminology’s long path towards addressing the realities of war
The issues raised by the existence of wars has always sparked deep reflections, ever since the classical authors, of what would be called today political science, although a general theoretical framework only emerged after the end of the First World War, under the banner of geopolitics. But phenomena such as those we experience today must be approached from different viewpoints: law, international relations, economics and criminology. What we witness are atrocious crimes, leading to terrible causalities and damage, perpetrated in the cruellest of ways. Preventing such crimes requires understanding how the underlying processes of force, ambition and confrontation emerge and evolve. A criminology of war and its atrocities is necessary.
Crimes of war, as well as the crimes perpetrated by the state against its own citizens, are the gravest of crimes. And yet, criminology, born with a bang in the second half of the 19th century, has only very recently started addressing these types of crimes, almost systematically after the Balkan wars in the 1990s.
Before that, only three criminologists have attempted to examine the wars and their crimes: Hermann Mannheim, Sheldon Glueck and Mariano Ruíz Funes, all three motivated by the genocides and atrocities of the Second World War.
Ruth Jamieson begins the introduction to her book Towards a Criminology of War (1998) by stating that, despite significant recent debates about the decline of barbarism in 20th century Europe, the incidence and ferocity of war and ethnic conflict show no sign of abating and that contemporary European criminology remains largely aloof and impassive to these issues. Twenty-five years before the current war in Ukraine, the author concluded that despite compelling historical and substantive reasons, contemporary criminology had not paid attention to the complex connections that structure the relationship between war and crime. In 2014, the European Criminology Group on Atrocity Crimes and Transitional Justice met for the first time within the European Society of Criminology, initiated by the great Alette Smeulers and now chaired by Nandor Knust, currently at the Arctic University of Tromso in Norway and formerly responsible for research into international crime at the Max Planck Institute in Freiburg. 3 For Alexia Pierre, the reasons for this lack of interest lie in the fact that ‘contemporary mass crimes are most often committed during armed conflicts, in the aftermath of such conflicts, or during periods of crisis and prolonged destabilization. Attacks on civilian populations then appear to outside observers as acts of war, collateral damage, or unavoidable acts resulting from an uncontrollable context’ and that most of these war crimes and atrocities are the result of a project, usually the appropriation of a territory and the purge of undesirable elements. 4
Genocide became the subject of criminological investigation after the commission of crimes in the former Yugoslavia and Rwanda. But it was not until 2009 that the Stockholm Prize in Criminology was awarded to Raúl Zaffaroni for his work on mass state crimes, which were epidemic in Latin America in the 1970s and 1980s. 5
The reasons for this delay are multiple: epistemological problems preventing the analysis of these heinous crimes as crimes of ordinary, rational people, difficulties in apprehending the reality of events of such magnitude, difficulties in obtaining data indispensable to an evidence-based criminology, difficulties in finding the victims and understanding their languages, etc. But the criminological approach, the material identification of the behaviours and processes that lead to such atrocities, the characteristics of the power and command relationships of armed groups, are essential not only for the development of an adequate criminal policy towards international crimes, but also for the administration of international justice. The International Criminal Court’s devastating acquittal in the Bemba II case stems from a failure to consider the material properties of the acts prosecuted in both the trial and the sentence.
The ambition of this article isn’t to delve into the various trials and procedures to analyse and deal with the numerous methodological approaches that have since been developed in criminology with respect to genocide, crimes of aggression, war crimes and crimes against humanity. Rather, my aim here is to assess what appears to be most significant to provide a material basis for legal action, whether national or international, and to identify the processes that led to this and other wars—the modelling of which could enable better prevention of future wars—as well as the design or improvement of the relevant legal policies for the European Union. 6
The sanctions that some states impose on others in response to the war warrant a formal legal analysis, such as the one undertaken by other contributions to this volume, 7 but also an analysis of their relevance in the effort to mitigate the level of violence of the aggressor or to achieve the cessation of hostilities. It is necessary to study the real criminological functioning of the targets, both states and other persons, and to establish European criteria on the material components of the criminal liability of natural and legal persons.
It is equally important to address the systematic efforts of fostering a public opinion conducive to war, which characterise the use of hate speech to incite to genocide and war, as well as to aim to repress behaviours that facilitate materially the war effort. Criminological literature frequently shows that genocides and great atrocities are not unintended consequences, but usually result from efforts to create a state of mind that denigrates and dehumanises the enemy, systematically repeated until it takes hold of the hearts and minds of people who normally have access to no other information. Moreover, it shows that in such scenarios militias and other forces that fall outside the scope of military legal discipline are frequently used. This is what happened in an extraordinary way with ‘Radio Télévision Libre des Mille Collines’ in Rwanda, and this is what is happening in Putin’s Russia, where there is an absolute control over communications and the war effort relies on private militias such as the Wagner group, which recruits criminals massively.
In what follows, I will address the criminological aspects of the fundamental problems of prevention and avoidance of atrocities from an international and European point of view, both in terms of the European security and defence policies and the harmonisation of criminal sanctions and incriminations, as well as their application, if necessary by the European Prosecutor’s Office.
I will limit the scope of my analysis here to the policy aiming to prevent the intervention of mercenary groups and companies in military and war actions and to the policy of sanctions and criminal prosecution at the European level, which is of paramount importance, especially in a ‘bastard’ war that uses energy and food resources as weapons of war. I will leave two other important aspects of the prevention of genocide, war crimes and atrocities for another occasion: the policy targeting the systematic disinformation by the adversary, and the fight against the ‘hate speech’ that supports genocidal policies, illegal wars and war crimes. Nonetheless, it must be stressed that the most reasonable policy in the face of atrocious wars and genocides is that of prevention, which, when ineffective, can morph into repressive measures. 8
2- Prohibiting mercenaries and similar private military and security companies
Since 1949, the Convention for the Protection of Victims of International Armed Conflicts has identified ‘mercenaries’ as a risk factor. Since then, but especially since the Iraq war, at the initiative of African countries particularly affected by the phenomenon, the United Nations has been trying to regulate, prohibit and criminalize not only mercenaries, but also their modes of organization, which are now known as ‘private military and security companies’ (PMSC). There is but one UN Convention on the prohibition and punishment of ‘the recruitment, use, financing and training of mercenaries’, only applicable outside of armed conflicts. 9 The Convention criminalizes (a) the recruitment, use, training or training of mercenaries, (b) the direct participation of a mercenary in hostilities or in concerted acts of violence, and (c) the intention to commit any of the offences set out in the Convention, and calls on states to incorporate these prohibitions into their domestic law with penalties appropriate considering their gravity. For its part, the African Union has had a convention for the elimination of mercenary activities in Africa since 1977, which was expanded in the statute of the African Court on Human and Peoples’ Rights to governments that assemble mercenaries to maintain themselves in power.
The additional risk factor for the commission of atrocities in wars is clearly the intervention of military units falling outside the ordinary army, which lack the order and discipline of professional armies and to which states sometimes resort precisely because of this characteristic. In the Ukrainian war, Russia is using two militia armies, the so-called Wagner group on the one hand and Kadyrov’s Chechen units on the other. It is not known which one of them is more atrocious. The former, as is well known, is largely composed of criminals who are offered their freedom after serving their sentences in combat, and soldiers of fortune, pure mercenaries, who advance Russian policy goals both in Ukraine and throughout Africa. As for Kadyrov’s men, it suffices to look at their combat slogans, recalling the great destiny awaiting them after death in a holy war.
During the war in Iraq, the intervention of thousands of ‘contractors’, in particular the company called Blackwater at the time, was widely covered by the media. We know the crimes they committed against the civilian population and that their main leaders were convicted by the American courts after long trials and pardoned by Donald Trump in the last days of his presidency. 10
The prevention of atrocities would essentially consist of prohibiting the use of mercenaries by states and considering them, under international criminal law, as criminal organizations punished as such. On December 4, 1989, after nine years of debate, the United Nations General Assembly approved—without a vote—the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. However, not only has no progress been made in this area, but there have been setbacks, especially since the war in Iraq, where these ‘private military and security companies’ have appeared on a massive scale, making it difficult to distinguish between the legitimate and criminal activities of these organizations. All of this has been the subject of an extensive study, the Montreux Document, produced by the International Red Cross. For the purposes of this article, it is sufficient to note that this document recommends that states institute criminal responsibility for all international crimes for which international law requires criminalization. However, as the working group of the UN Commission on Human Rights points out, there is a need not only for recommendations and codes of good practices, but also for binding legal provisions of international law.
The European Union has applied restrictive measures to the leaders of the Wagner Group (European Council, Foreign Affairs, News, Dec. 13, 2021), for their actions not only in Ukraine, but also in Syria and several African countries. But it seems that the EU does not have a clear-cut doctrine on this issue, other than whether the mercenary companies are Russian. Indeed, in 2017 there was a debate in the UN Human Rights Council on a resolution condemning the use of mercenaries, during which representatives of the United States and the European Union voted against. 11 During the same year, a debate took place in the European Parliament’s Committee on Foreign Affairs, which issued a draft resolution proposing that the European Commission should only contract private security companies based in EU member states and that there should be monitoring of their activities, as well as stricter rules for their contracting, subject to common and binding criteria across the European states. 12
In view of the above, it seems obvious that the EU should promote at its own level legislation on PMSCs, their criminalization and the harmonization proposals recommended by member states. It is clear that the EU has much to do in this area. It has done so by adopting the so-called European Magnitsky Act, 13 which provides for sanctions in cases of genocide, crimes against humanity and other human rights violations such as torture, slavery, extrajudicial executions, enforced disappearances and arbitrary detention. Sanctions may also be adopted to target other human rights violations, provided they are systematic or widespread, such as trafficking in persons, sexual violence, freedom of assembly and association, freedom of opinion and expression, and freedom of religion.
3- EU Sanctions and Restrictive Measures against Perpetrators and European Criminal Law Harmonization on Measures against Circumvention Behaviour
As noted above, the analysis of sanctions that some states impose on others in response to the war warrant a formal legal analysis, but also an investigation into their practical relevance in the effort to mitigate the level of violence of the aggressor or to achieve the cessation of hostilities. It is necessary to study the real criminological functioning of the targets, both states and other persons, and to establish European criteria on the material components of the criminal liability of natural and legal persons. It doesn’t suffice to point to the officials of the aggressor state, but to identify and substantiate with clear evidence the liability of those individuals who have full control over companies involved in these crimes. A criminology of corporations and white-collar criminals would certainly be welcome.
Interstate sanctions aiming to prevent or to react to war efforts have a long history, particularly as a trade policy. Already the Napoleonic wars were marked by trade sanctions and export embargoes; but modern restrictive measures and financial sanctions, as well as the freezing of goods and assets, are a modern phenomenon, explained precisely by the levels of globalisation that have been achieved. To the best of my knowledge, the first reflection on these sanctions as a weapon of peace and war is offered in Hermann Mannheim’s War and Crime, which first reflects on the limits of mediation in the pre-defensive war phases, including the limits of resocialisation. Reflections on its effectiveness in preventing wars of aggression and war atrocities has not ceased since then. 14
But the worst thing about sanctions against aggressor states is that they are not enforced. This was the case with the sanctions imposed by the League of Nations: Italy was not subjected to an oil embargo and the UK did not block the Suez Canal to cut off supplies to the aggressors. It is worth recalling the cost to Europe and the world of the arms embargo imposed on the Spanish Republic. It is surprising, for example, that René Cassin’s excellent book Les hommes partis de rien does not mention the decisive effect of the defeat of the Second Spanish Republic on the invasion of Austria, Czechoslovakia, and then Poland and France. A comprehensive and recent study is offered by Nicholas Mulder in a book analysing sanctions policy from 1945 to the present day. 15
3-1 Confiscation and compensatory appropriation of assets subject to restrictive measures
Analysing the efforts of the EU authorities and the Member States to effectively enforce the European sanctions, one can see problems stemming from the feeble identification capacities and the circumvention of the restrictive measures by individuals and companies. The objective, therefore, is to improve European regulation in this area and to harmonise the weak measures at national level. It is clear that non-compliance and evasion, as well as the lack of enforcement of these measures by certain national authorities must be subject to the same sanctions in all countries, without the subjects of the measures being able to ‘choose their prince’ within the EU, in the words of Cesare Pedrazzi.
There is an urgent need for harmonisation of incriminations and for sanctions defining a new Euro-offense; a project has been in preparation for several weeks, at an unprecedented speed in the Union’s legislative practice. This issue, which has been intensively commented on since the Russian invasion of Ukraine, has two consequences. First, the harmonisation of the various forms of non-compliance with sanctions as a crime by means of a European directive and, second, the granting of powers to investigate such crimes to the European Public Prosecutor.
The European Council meeting of 9 February 2023 reaffirmed its intention to demand accountability for war crimes and other serious crimes committed in Ukraine and to support the establishment of an appropriate mechanism for the prosecution of the crime of aggression, as well as the investigations initiated by the Prosecutor of the International Criminal Court. It further supported the establishment of an appropriate mechanism for the prosecution of the crime of aggression in The Hague, an effort that has been linked to the existing Joint Investigation Team at Eurojust. 16
The same European Council called for increased cooperation between public customs control bodies, tax authorities, intelligence services, research institutes and statistical agencies to improve the implementation of restrictive measures and other sanctions. It concluded by referring to EU legislative action on sanctions policy and the incrimination of circumvention of sanctions in a regulation, and on the harmonisation instrument of the offence in a directive, the proposal for which was published after receiving a favourable vote from the Parliament last December. 17
This provision is based on Article 83(1) TFEU, which establishes a closed list of Euro-offences, which can only be extended if necessary for the implementation of a Union policy, as in the case of market abuse offences. However, Article 83(1) itself provides that the Parliament and the Council may extend the list of Euro-offences where, in light of developments in crime and another group of offences, they are particularly serious and have a cross-border dimension. 18 The idea of extending the Euro-offenses to the circumvention of sanctions and restrictive measures, and not only those related to the external security of the Union, arose during the French Presidency of the European Council in 2022. The Council then sought the approval of the Parliament and then adopted the decision to initiate this procedure on 28 November 2022. 19
The restrictive measures are, or should be, aimed not only at exercising appropriate psychological coercion in order to deter entities or individuals from initiating or continuing war activities, but also at securing the resources necessary to finance solidarity with Ukraine in the civilian and military spheres and, in the future, to restore Ukraine after the massive destruction it is suffering. This would obviously be the case if the crime of aggression and the war crimes and crimes against humanity were tried before a court, but it seems clear that such an expectation would be postponed to an uncertain future. It is also true that the object of the sanctions and the funds and property withheld could be qualified as direct or indirect fruits of these crimes and be subject to confiscation, This is an issue that has been resolved in all the countries of the Union, but it would be questionable and there would be no facilities for the European management of the funds, except if established through European legislation.
It should be recalled that the invasion of Ukraine by Russia and the support of the European Union and its Member States has resulted in extremely high financial costs and that its mitigation is a major issue for the financial interests of the European Union, which will again see its interests and budget compromised during the inevitable reconstruction of Ukraine. This point is not explicit in the documents relating to the Directive, as Andres Dornbierer points out in a recent study. 20 Nonetheless, on 30 November 2022, Ursula von der Leyen stated that ‘Russia must also pay financially for the devastation that it caused. The damage suffered by Ukraine is estimated at 600 billion euros. Russia and its oligarchs have to compensate Ukraine for the damage and cover the costs for rebuilding the country. And we have the means to make Russia pay. We have blocked 300 billion euros of the Russian Central Bank reserves and we have frozen 19 billion euros of Russian oligarchs’ money. In the short term, we could create, with our partners, a structure to manage these funds and invest them. We would then use the proceeds for Ukraine. And once the sanctions are lifted, these funds should be used so that Russia pays full compensation for the damages caused to Ukraine. We will work on an international agreement with our partners to make this possible. And together, we can find legal ways to get to it. Russia’s horrific crimes will not go unpunished.’ 21
But so far, the issue is both simple and surprising, as the EU seems to have been careful to create through legislation a system of financial coercive measures that would not morph into asset confiscation in the event of failure, meaning that if the war in Ukraine were to end other than with an unlikely unconditional Russian surrender, all frozen assets and financial securities would have to be returned to Russia. For its part, the EU would then have to establish a special tax to cover the costs of supporting Ukraine, both in terms of arms delivered as part of its defensive war efforts and assistance provided to the millions of displaced people, as well as the future recovery plan. The fact is that the current programme of the directive in question, as well as another programme being prepared on confiscation, which will be specified shortly, only envisage the creation of offences for the circumvention and violation of the regulations and provisions that impose the restrictive measures. The EU has so far avoided converting the provisional restrictive measures into definitive measures, ie to confiscate the goods and assets subject to these measures once the intended objective (the cessation of hostilities and of the occupation of Ukraine by Russia), has been achieved. This is not only missing in this proposal for a directive, but also in Regulation 2020/1998 on restrictive measures and its corresponding decision 2020/1999. 22
The proposal for a Directive on asset recovery and confiscation of 25 May 2022, which is limited to extending confiscation measures to the crimes of circumvention of restrictive measures, does not address the issue either. Thus, in recital 6, it is stated ‘This Directive does not regulate the freezing of funds and economic resources under Union restrictive measures’, and recital 11 states that ‘in order to ensure the effective implementation of Union restrictive measures, it is necessary to extend the scope of the Directive to the violation of Union restrictive measures’. Therefore, to define the scope of offenses to which the new rules apply, Article 1.2 states: ‘This Directive also establishes rules to facilitate the effective implementation of Union restrictive measures and the subsequent recovery of related property where necessary to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures.’
The issue is the widespread fear that the confiscation of these assets would have to be carried out in a complex procedure that would result in litigation before the CJEU in Luxembourg and, if necessary, before the ECHR in Strasbourg; the two courts may refuse to recognise measures that violate due process or property rights. The concern is valid: one need only look at the Luxembourg Court’s decision of 8 March 2023 annulling the application of restrictive measures against the mother of Wagner’s founder, who has considerable wealth, apparently because, quite simply, the Commission was unable to obtain access to and documentation from the Moscow commercial register proving the origin of assets and companies belonging to the Russian war criminal and mercenary leader before 2019, 23 an argument that is completely alien to the Court’s own doctrine, which calls for cases to be interpreted ‘in their context’, ie in this case an ongoing war.
One conclusion from the above is that the EU should not only define and harmonise the behaviours that circumvent the restrictive measures but should also include in the catalogue of punishable offences subject to confiscation measures the behaviours proscribed by Article 3 of the proposed Directive. The definition of unlawful conduct can and should be provided in Regulation 2020/1998 on restrictive measures against serious human rights violations and abuses. It is interesting to note that in setting out the offences to which this Regulation applies, it mentions genocide (a) and crimes against humanity (b) but does not mention crimes of aggression or war crimes.
It would therefore be necessary to incorporate a provision in Regulation 2020/1998 which, without prejudice to its final drafting, would establish that ‘where actions constituting abuses or violations of human rights which are the basis for the adoption of restrictive measures continue despite the enforcement of such measures, the funds and economic resources obtained shall be confiscated and allocated to the reparation of damages caused or continuing to be caused or to the recovery of expenses incurred, in particular as a result of an unlawfully declared war against another country. The EU Council shall have full powers of administration and allocation of these funds.’
3-2 Relevance of the criminalisation of intent and recklessness in the harmonisation Directive: the problem of deliberate ignorance
But criminology reveals that one of the most serious problems facing a harmonised criminalisation of circumventing behaviour is that of subjective liability. The proposed Directive states in Article 3(1a) that ‘violations of a Union’s restrictive measure [which] constitute a criminal offence when committed intentionally’ will be punishable by the relevant penalties provided for in Article 5 and Article 3. Article 3(3) provides that ‘the conduct referred to in paragraph 2(a) to (g) shall constitute a criminal offence also if committed with serious negligence’, without any indication of the sanction to be harmonised for these cases; this deserves an initial consideration, given that the sanctions for reckless conduct are usually minimal, generally excluding imprisonment and limited to fines, often lower than administrative pecuniary sanctions.
Criminology precisely points out that in practice, what usually happens in that prosecutions based on breaches of rules and regulations are resolved as negligence, because it cannot be proved that the main conduct was carried out with full knowledge of the circumstances and prohibition of the conduct. And yet, in most criminal cases carried out for violations of administrative or commercial regulations such as those in question, the subjects act in deliberate ignorance, which prevents them from being conscious of the circumstances and provisions mandating the immobilisation of goods or knowing that their actions violate the general or specific regulations that apply to them. This is a very conscious behaviour in practice, whereby the subject avoids having to learn that he is subject to a restrictive measure and nevertheless carries out the act of disposal. National or European law cannot ignore this reality because it facilitates what some legal systems call fraud, although the expression that best identifies the subjective behaviour of the subject and its consequences is that of acting with ‘wilful blindness’ (Rechtsblindheit). 24
Such evasive behaviour is typical for professionals and commercial organisations, as is generally the case, for example, in the field of corporate economic crime or in the market for protected cultural goods, which has recently been the subject of numerous investigations. In this respect, criminological studies indicate that art dealers are often unaware that they are dealing with protected cultural property because they have not been willing to verify its true origin or protected nature, despite the fact that there are often indicia in this respect, which leaves the policy objective of protecting such cultural property marred by uncertainty. 25
Therefore, a provision should be introduced in the European texts harmonising the criminal offences of circumvention of the rules on restrictive measures, in order to avoid the automatic re-characterisation of criminal behaviour as mere liability for negligence and the downgrade of available sanctions to fines only, where offenses are committed in wilful ignorance. Such a provision would ensure that the Directive is applied equally across the European Union, without any country being allowed to become the ‘Principality’ of choice for negligence torts.
It would suffice to add to Article 5, after paragraph 4, a paragraph 4 bis stating that ‘the same sanctions as those provided for in the two preceding paragraphs shall apply to the respective conduct when committed in wilful blindness either of the fact that goods or funds are subject to restrictive measures or of the scope and meaning of such restrictive measures’. The meaning of such provisions is well understood in common law and in some civil law countries. Distinguishing malice from recklessness is a deep and extremely complex theoretical problem, but it is all solved if the law explicitly provides for it, and it is no longer a mere doctrinal or theoretical question. Doctrine will only have to develop criteria to discriminate certain behaviours as more serious than others. The law, in this case, is first and foremost fundamentally a system for qualifying offences and assigning penalties. The provision does not say that wilful blindness is an intentional offense, but only that it is punishable by the same penalty as intentional offenses. 26
From the perspective of criminal law, the response to war and atrocities must be primarily legal—the denunciation and the criminal sanctioning of criminal offenses—but it should not be imposed blindly; rather, it should be well though through and reflective of the factual context. For this reason, the legal response should be supported by criminological investigation.
Criminology teaches us that impunity for atrocities is the strongest criminogenic factor, which is why it is essential to bring those responsible for this war and its conduct to criminal justice, either at the ICC, an ad hoc international tribunal, or an internationalised Ukrainian tribunal with the cooperation of the European Union.
The Ukrainian war was initiated with an army of mercenaries, the Wagner Group, the ‘little green men’ who occupied Crimea in 2014. The harmonisation of their criminalisation and an early prosecution of mercenaries can prevent and avoid the subsequent aggression with ordinary armies.
The policy of sanctions against the aggressor states is the only viable alternative for other European states—bar their own mobilisation and involvement in the war—because a policy of imperialist warfare, whose limits are unknown and which would be a source of new and continuous dangers, cannot be acquiesced. The only real alternative to war is to supply weapons to a people that has taken up arms and to apply economic sanctions which, if the war does not stop, must morph into definitive measures, with confiscated funds and goods used to compensate the victim country, to support its reconstruction and future development, and to finance EU’s commitments in terms of delivery of weapons and solidarity with displaced persons. To ensure the legality of these measures, it is necessary to include crimes of aggression and war crimes among the offences justifying the adoption of restrictive measures and to provide for the confiscation of goods and assets in Regulation 2020/1998, as well as in the proposal for a Directive on asset recovery and confiscation, and to include in the proposal for a Directive on the harmonisation of the offences of violation of Union restrictive measures the sanctioning of conduct carried out in wilful ignorance.
Ultimately, the EU faces the challenge of providing for a legal characterisation of the violations of international law that it wishes to address and must therefore complement the concept of restrictive measures with the definition of the international violation that grounds, first, the application of restrictive measures and, second, confiscation, under conditions that are not reprehensible to the institutions charged with the protection of human rights. The criminology of the behaviour of those who contribute to the war and are subject to restrictive measures and their financial operating methods calls for the criminalisation of circumvention behaviour by means of severe prison sentences and the harmonisation of offences and penalties throughout the European Union.
The criminological analysis of companies and their managers calls for the further criminalisation of certain behaviours in the business context: not only knowing and wilful circumventing behaviour, as proposed in the Directive, but also ‘wilfully blind’ behaviour, which should be sanctioned with penalties equivalent to those applicable to wilful misconduct, and not the light penalties applicable to negligent behaviour.
Furthermore, the positive experience of the effectiveness of the European Public Prosecutor’s Office in the criminal prosecution of offences against the EU’s financial interests has prompted the French and German Justice Ministers to propose extending its competences to infringements of the EU restrictive measures. 27 Without a harmonisation of criminal prosecutions through the European Public Prosecutor, there will be no real harmonisation of the underlying offences. We face today a truly global criminal law and, as Adam Nieto points out, an era of post-national criminal justice. 28
- L. Gautier, ‘La guerre bâtarde, Ukraine, guerre hybride, guerre ouverte et technologie’, Revue Défense Nationale (2022/6) no 851, 15-32 ; L. Gautier, Mondes en Guerre, IV, Guerre sans frontières (Passés/Composés 2021).
- See ‘Killings of civilians: summary executions and attacks on individual civilians in Kyiv, Chernihiv, and sumyregions in the context of the Russian federation’s armed attack against Ukraine’, HCHR (December 2022). See also the analysis of Putin’s discourse by Guillaume Lancereau, ‘Discours de Poutine : la politique intérieure de l’agresseur’, Le Grand Continent, 22 February 2023.
- Nandor Knust, Strafrecht und Gacaca. Die Aufarbeitung des ruandischen Völkermords mit einem pluralistischen Rechtsmodell (MPI Fribourg i. Br. 2013); Alette Smeulers and Fred Grünfeld, International crimes and othergross human rightsviolations : a multi- and interdisciplinary textbook (Martinus Nijhoff Publishers 2011); Alette Smeulers, Supranationalcriminology : towards a criminology of international crimes (Roelof Haveman, Intersentia 2008).
- Alexia Pierre, ‘Le crime de masse en criminologie’ (2015) 3 Revue de science criminelle et de droit pénal comparé, 627 – 637.
- Raúl Zaffaroni, El crimen de Estado como objeto de la Criminología (Biblioteca del Instituto de Investigaciones Jurídicas 2013), and ‘Can Criminal Law Really Contribute to the Prevention of Crimes against Humanity?’, (2009) Journal of Scandinavian Studies in Criminology and Crime Prevention, 2-25.
- See supra notes 5 and 6.
- See in this volume the contributions by Régis Bismuth, Anton Moiseienko and Leanna Burnard and Mira Naseer.
- Hollie Nyseth Brehm, ‘Re-examining risk factors of genocide’ (2017) 19 Journal of Genocide Research 1, 61-87.
- International Convention against the Recruitment, Use, Financing and Training of Mercenaries, adopted by General Assembly Resolution 44/34 on 4 December 1989.
- ACNUDH, ‘US pardons for Blackwater guards an ‘affront to justice’ – UN experts’ (2020) https://www.ohchr.org/en/press-releases/2020/12/us-pardons-blackwater-guards-affront-justice-un-experts; Jelena Aparac, ‘Business and armed non-State groups: challenging the landscape of corporate (un)accountability in armed conflicts’ (2020) 5 Business and Human Rights Journal 2 ; Sandra Walklate and Ross McGarry, ‘Typologies: Policing in Conflict and Post-conflict Zones’, in The Palgrave Handbook of Criminology and War (Palgrave Macmillan 2016).
- 22 September 2017, A/HRC/36/L.2
- E. Krahmann and C. Friesendorf, The role of private security companies (PSCs) in CSDP missions and operations, Directorate-General for external policies of the Union (Bruxelles 2011).
- Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses; Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses.
- International Sanctions. A Report by a Group of Members of the Royal Institute of International Affairs. (Oxford University Press 1938), published by a working group created following the Italian invasion of Ethiopia.
- Nicholas Mulder, The Economic Weapon: The Rise of Sanctions as a Tool of Modern War (Yale University Press 2022), following by severals interesting reviews, edited by Christopher Schaefer in Toqueville 21, Book Forum, March 2022, with an answer from the author.
- On the complexity of the exercise of criminal jurisdiction over Russian aggression and atrocities, see the contribution of Federica D’Alessandra to this volume, as well as William Schabas, ‘La Justice pénale et la guerre en Ukraine’, Blog Club des Juristes, 19 March 2022, and the contributions of Didier Rebut, J.-F. Laval and A.-L. Chaumette on the same blog, and the various contributions to the September 2022 issue of Journal of International Criminal Justice, with an introduction by Julia Geneus and Florian Jessberger.
- Proposal for a Directive of the European Parliament and of the Council on the definition of criminal offences and penalties for the violation of Union restrictive measures (COM(2022) 684 final), 2 December 2022.
- K. Tiedemann and A. Nieto, Eurodelitos, con edición mexicana de INACIPE de 2006: el derecho penal económico en la Unión Europea (UCLM Cuenca 2005) ; Marta Muñoz de Morales and Luis Arroyo Zapatero, ‘Le contrôle des choix de pénalisation : effets directs et indirects’, in Geneviève Giudicelli-Delage, Stefano Manacorda (dir.), Cour de Justice et Justice Pénale en Europe, UMR de Droit Comparé de Paris, vol 19 (Société de Législation Comparée 2010), 23-55; Luis Arroyo Zapatero and Marta Muñoz Morale, ‘L’harmonisation autonome’, in Geneviève Giudicelli-Delage and Stefano Manacorda (dir.) Le droit pénal de l’Union européenne au lendemain du Traité de Lisbonne (Société de Législation Comparé 2012), 113-139.
- Pour un compte rendu et une évaluation exacts des développements criminels dans l’UE au cours de cette année v. Didier Rebut, L’ajout de la violation des sanctions européennes contre la Russie à la liste des infractions pénales de l’Union européenne : Signification, portée et perspective, Le Blog du Club des Juristes, 2 décembre 2022.
- A. Dornbierer, ‘From sanctions to confiscation while upholding the rule of law’ (Basel Institut on Governance, Working Paper 42, February 2023).
- Statement of the President of the European commission, Brussels, 30 November 2022, https://ec.europa.eu/commission/presscorner/detail/en/statement_22_7307; B. de Miguel, ‘La UE promueve la confiscación de bienes rusos para pagar la reconstrucción de Ucrania’, El País, 9 May 2022; Russian Elites, Proxies, and Oligarchs Task Force Joint Statement, U.S. Department of the Treasury, 29 June 2022, https://home.treasury.gov/news/press-releases/jy0839.
- See, critical towards the European commission, Jeff Nielsen, ‘Considering the EU Commission’ proposal on its Directive for Criminal Penalties for Violations of Restrictive Mesasures in the Context of a Comparative Analysis with United States Sanction Enforcement’ (2022) https://ssrn.com/abstract=4283807 ; see also Michael Kilchling, ‘Beyond Freezing? The EU’s Targeted Sanctions against Russia’s Political and Economic Elites, and their Implementation and Further Tightening in Germany’ (2022) 2 EUCRIM, 136-146; on their criminology, see Eurojust/Genocide, Prosecution of sanctions (restrictive measures) violations in national jurisdictions: a comparative analysis (December 2021); Eurojust, Key factors for successful investigations and prosecutions of core international crimes (2022).
- Anna Pingen, ‘Annulment of Restrictive Measures Applied to Mother of Wagner Group Founder’, eucrim (10 March 2023), https://eucrim.eu/news/annulment-of-restrictive-measures-applied-to-mother-of-wagner-group-founder/; see also the Judgment of the General Court of 8 mars 2023.
- On the German experience on this area, and especially the freezing of assets, see Klaus Tiedemann, Witschaftsstrafrecht (5th ed. Wahlen 2018), in particular at 257 et seq.
- See Stefano Manacorda and Duncan Chapell, Crime in the Art and Antiquities World, Illegal Trafficking in Cultural Property (Springer 2011); Kenneth Polk and Duncan Chappell, ‘Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud’ (2009) 20 Current Issues in Criminal Justice 3, 393-412; Duncan Chappell and Kenneth Polk, The Peculiar Problem of Art Theft, Contemporary Perspectives on the Detection, Investigation and Prosecution of Art Crime (Routledge 2014).
- See for instance Francesco Rossi, ‘Un’introduzione al problema dell'”ignoranza deliberata” nella teoria dell’elemento soggettivo del reato’, La legislazione penale, 27 September 2022, https://www.lalegislazionepenale.eu/ ; Ramon Ragués i Vallès, La ignorancia deliberada en Derecho penal, (Atelier 2008); Jonathan L. Marcus, ‘Model Penal Code Section 2.02(7) and Willful Blindness’ (1993) 102 The Yale Law Journal 8, 2231; Francesco Curi, Tertium datur. Dal common law al civil law per una scomposizione tripartita dell’elemento soggettivo del reato (Guiffrè 2003); Alexander Sarch, Criminally Ignorant : Why the Law Pretends We Know What We Don’t (Oxford University Press 2019).
- Eric Dupond-Moretti and Marco Buschmann, Le Monde, 29 November 2022 (https://www.lemonde.fr/en/opinion/article/2022/11/29/violations-of-eu-sanctions-must-be-prosecuted-by-the-european-public-prosecutor-s-office_6006013_23.html).
- Adán Nieto Martín, Global Criminal Law. Postnational Criminal Justice in the Twenty-First Century (Palgrave 2022).
Luis Arroyo Zapatero, Criminology of War and Criminal Policy of the European Union, Jun 2023,
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The New Frontiers of European Sanctions and the Grey Areas of International Law
Following Russia’s invasion of Ukraine, the European Union (EU) adopted an unprecedented series of sanctions (also known as ‘restrictive measures’) between February 2022 and April 2023. Each ‘package’ of sanctions, of which there are ten to date, builds on and amplifies the legal framework of the sanctions imposed in 2014 following the annexation of Crimea, … Continuedlire l'article
Pursuing Accountability for the Crime of Aggression Against Ukraine
A little over one year ago, multilateralism seemingly ‘lied on its deathbed’ as the world’s second largest nuclear power, Russia, invaded neighbouring Ukraine right as the UN Security Council was meeting in New York in an eleventh-hour effort to ‘give peace a chance’. For months, a massive military build-up by Russian forces at the border … Continuedlire l'article
War in Ukraine: Mutation or Resilience of the Principles of the United Nations Charter?
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