Corporate War Crimes in Ukraine

(Prosecuting the Pillage of Natural

Resources)

The Outline:

1) Introduction

2) Terminology/Definition

3) Pillage of Natural Resources as a War Crime

4) Jurisdiction

5) The obligation to Prosecute

6) Appropriation of Property

7) The Natural resources ownership

8) Authorization for resource extraction

9) The subjective element of the Pillage

10) The Criminal Responsibility

11) Conclusion

1) Introduction

For a crime to fall within the International Criminal Court’s (ICC) jurisdiction it must

constitute one of the crimes set out in article 5 of the Rome Statute. There is huge of information

suggesting the existence of an armed conflict in Ukraine during the period from March 2013 till

present. Accordingly, current analysis of the armed conflict in Ukraine has focused on whether the

crimes allegedly committed during armed conflict may amount to a corporate war crimes unde

article 8 of the Rome Statute, specifically to Article 8(2)(b)(xvi). Which is mean, that the companies

which are operating independently, indirectly or even unconsciously in the surrounding conflict in

Ukraine, potentially bound by the prohibition against pillage – an international war crime.

2) Terminology/Definition

a) the Pillage of Natural Resources:

According to the ICC Elements of Crimes, “pillaging” in both international and non-

international armed conflicts includes the following key legal components1:

1) The perpetrator appropriated certain property;2

2) The perpetrator intended to deprive the owner of the property and to appropriate it for

private or personal use;3

3) The appropriation was without the consent of the owner;

4) The conduct took place in the context of and was associated with an international or non-

international armed conflict; and

5) The perpetrator was aware of factual circumstances that established the existence of an

armed conflict.

To start with, the prohibition of pillaging is considered part of customary international law4,

and is criminalised in the Statutes of the ICTR and Special Court for Sierra Leone (“SCSL”)5.

Noteworthy, the SCSL come up with the conclusion, that “the prohibition of the unlawful

1 International Criminal Court, Elements of Crimes, ICC-ASP/I/3, art. 8(2)(b)(xvi). 2 See, ICTY, Delalić et al. Trial Judgment, para. 590. Noteworthy, the mental elements set out in Article 30 of the Rome Statute,

a special intent or dolus specialis in the sense that “[t]he perpetrator [must have] intended to deprive the owner of the

property and to appropriate it for private or personal use”. While the term “deprive” is not defined in the Statute or

Elements of Crimes, it means “prevent (a person or place) from having or using something”. Accordingly, the ICC

Chamber considers that, in order for the war crime of pillaging to be established, it must be demonstrated that the

perpetrator intended to prevent the owner from having or using their property. 3 See., United States v. Krauch et al., (IG Farben), 8 Trials of War Criminals I08I, p. 1133 (hereafter IG Farben Case), as

indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute

the crime of pillaging. However, the U.S. Military Tribunal established at Nuremberg after World War Two, for instance,

defined pillage in the IG Farben case by stipulating that “[w]here private individuals, including juristic persons, proceed

to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such

action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international

law.”. In addition, according to the Prosecutor v Sesay et al., SCSL-04-15-T, Judgment, par. 982 (March 2, 2009) - “the rights

and duties of occupying powers, as codified in the 1907 Hague Convention and the Fourth Geneva Convention, apply

only in international armed conflicts.". See. also, James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of

Natural Resources", Open Society Kustice Initiative Publication, 2011, p.21-22. - This formality, should be taken into

account as a matter of caution rather than law. Concerning the fact, that rebel groups are often proxies for foreign

governments. A rebel group often acting as an agent for a foreign state might be able to formally claim privileges that

derive from the law governing international armed conflicts. So, cautious approach that exist in the case law, as well as

that treats the exceptions contained in the Hague Regulations should be applicable in both international and non-

international armed conflicts. 4 See, inter alia, ICTY, Blaškić Appeal Judgment, para. 148; ICTY, Delalić et al. Trial Judgment, para. 315. 5 See, ICTR Statute, Article 4(f); and SCSL Statute, Article 3(f).

appropriation of public and private property in armed conflict is well-established in customary

international law where it has been variously referred to as “pillage”, “plunder” and “looting”.”6

The ICTY tribunal also sum up, that “the unlawful appropriation of public and private property in

armed conflict has varyingly been termed “pillage,” “plunder,” and “spoliation,” and that the term

plunder “should be understood to embrace all forms of unlawful appropriation of property in armed

conflict for which individual criminal responsibility attaches under international law, including

those acts traditionally described as “pillage”.”7

The ICC Chamber notes that the Court’s legal framework does not include any requirement

of violence as an element of the appropriation. In this respect, the Court is of the view that in certain

circumstances lack of consent can be inferred from the absence of the rightful owner from the place

from where property was taken.8 Lack of consent may be further inferred by the existence of

coercion.9 In fact, there is unanimity that “the prohibition against the unjustified appropriation of

public and private enemy property is general in scope, and extends both to acts of looting committed

by individual soldiers for their private gain, and to the organized seizure of property undertaken

within the framework of a systematic economic exploitation of occupied territory.”10

Additionally, the ICTY Chamber concurs with other chambers of the Court that pillaging

extends to the appropriation of all types of property, private or public, movable or immovable.11 In

line with the ICC it considers that pillaging, pursuant to the Rome Statute, goes beyond ‘’mere

sporadic acts of violation of property rights’’ and involves the appropriation of property on a “large

scale”. Pillaging relates to ‘’pillaging a town or place’’, and therefore the pillaging of a single house

would not suffice. In the ICTY Chamber’s view, this is, however, compatible with the stance that the

prohibition of pillaging covers both individual acts of pillage and organized pillage.12

However, there are some exceptions in Hague Regulations with the interpretation of pillage

as indicated by the use of the term “private or personal use” justified by military necessity. The

Hague Regulations regulate requisitions of privately owned property “for the needs of the army of

occupation.”13 The concept of military necessity is mentioned in footnote 62 of the Elements of

Crimes, which specifies, with reference to the requirement that the perpetrator intended to

appropriate the items for “private or personal use”, that “[a]s indicated by the use of the term

“private or personal use”, appropriations justified by military necessity cannot constitute the crime

of pillaging.” Thus, the term is widely understood as meaning property essential to the army’s

immediate upkeep.

6 See, Prosecutir v Brima et al., Case No. SCSL-04-16-T, Judgment, par.751 (June 20, 2007), (hereafter Brima Trial Judgment). 7 See, Prosecutor v Delalic et al., Case No. IT-96-21-T, Judgment, (November 16, 1998), par. 597 (hereafter Delalic Trial

Judgment). 8 See, Katanga Trial Judgment, para. 954, where was held that looting was committed without the owners’ consent when

civilians were in hiding. 9 See, ICTY, Krajišnik Trial Judgment, para. 821, finding that the Serb authorities’ actions in implementing decisions forcing

Muslims to surrender all their property to the municipality in order to be allowed to leave the area amounted to plunder;

and I.G. Farben Judgment, pages 1135 to 1136, holding that consent is often vitiated through coercion in times of war

“when action by the owner is not voluntary because his consent is obtained by threats, intimidation, pressure, or by

exploiting the position and power of the military occupant under circumstances indicating that the owner is being induced

to part with his property against his will”. 10 See, Prosecutor v Delalic., Case No. IT-96-21-T, Judgment, (November 16, 1998), par. 590 (hereafter Delalic Trial Judgment). 11 See, Katanga Trial Judgment, para. 904. See also ICTY, Martić Trial Judgment, para. 101; ICTY, Kordić and Čerkez Appeal

Judgment, para. 79; and ICRC Commentary on the Fourth Geneva Convention, pages 226 to 227. 12 See, ICTY, Delalić et al. Trial Judgment, para. 590. 13 Article 52 stipulates that “Requisitions in kind and services shall not be demanded from municipalities or inhabitants

except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a

nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.

Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

Contributions in kind shall as far is possible be paid for in cash; if not, a receipt shall be given and the payment of the

amount due shall be made as soon as possible.”

For example, the Krupp Judgment, state that such requisitions entailed “billets for the

occupying troops and the occupation authorities, garages for their vehicles, stables for their horses,

urgently needed equipment and supplies for the proper functioning of the occupation authorities,

food for the army of occupation, and the like.”14 Other authorities define the category as including

such things as “food and supplies, liquor and tobacco, cloth for uniforms, leather for boots, and the

like” that clearly shows, that the natural resources which are extracted or traded for profit during

war are not comparable to these objects, all of which are necessary for the day-to-day needs of an

army.15 Thus, the transfer of requisitioned property to areas outside occupied territory would also

contradict “the needs of the army of occupation.” Nevertheless, if the companies exporting minerals

such as coal, gold, coltan, and cassiterite from conflict zones it can therefore be confident that the

resources were not legitimately requisitioned.16

Taking into consideration the statement of one Belgian court, “[i]f a measure was taken in

reliance on Article 52 [of the Hague Regulations], the chattel must be used for the needs of the army

of occupation and therefore cannot, in principle, be sold.”17 Also, the French Cour de Cassation has

agreed with this finding, insisting that although international law might afford an army the right to

requisition property owned by private individuals, “it does not give an army of occupation the right

to sanction the transfer to private individuals of goods taken from others by acts of violence.”18 The

last example would be the Katanga Judgment, where Trial Chamber II endorsed the definition of

military necessity set out in Article 14 of the Lieber Code, which provides that “[m]ilitary necessity,

as understood by modern civilized nations, consists in the necessity of those measures which are

indispensable for securing the ends of the war, and which are lawful according to the modern law

and usages of war”.19

It worth to be mentioned, that Article 53 of the Hague Regulations stipulates that “[a]n army

of occupation can only take possession of cash, funds, and realizable securities which are strictly the

property of the State, depots of arms, means of transport, stores and supplies, and, generally, all

movable property belonging to the State which may be used for military operations.”20 However,

the provision is rather limited to details, for example, publicly owned moveable resources, such as

artisanal coal or gold, do not fall within the correct interpretation of the rule. In the Krupp case, for

instance, the U.S. Military Tribunal at Nuremberg found that “machinery and raw materials”

hurriedly removed by corporate representatives from a state-owned steel works in Ukraine during

an evacuation constituted pillage.21 The tribunal rejected arguments that the state property was

legitimately seized, finding that “the property removed did not fall into any category of movable

public property which the occupant is authorized to seize under the Hague Regulations.”22

14 See, Krupp Case, p. 1345; For other definitions of property generally contemplated by the term requisition, see John

Westlake, International Law, Part II: War 110 (Cambridge, 1907) (“food for men and animals and clothes, wagons, horses,

railway material, boats and other means of transport, and of the compulsory labour, whether gratuitous or otherwise, of

workmen to make roads, to drive carts, and for such other services.”); see also Percy Bordwell, The Law of War Between

Belligerents, 320 (Callaghan and Company, 1908) (indicating that “requisitions in kind extend to all objects incidental to

the shelter of troops, to the subsistence of the army in campaign, to transportation and communication, to the care of the

sick and wounded, to objects of clothing and camp equipment, and finally to all materials, tools, apparatus, etc., suitable

for use of the army.”); see also Manual of Military Law, (HMSO, 1958) para. 598 15 See., Manual of Military Law, (HMSO, 1958) para. 598. 16 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.54. 17 See., Thiriez v. Deschamps, 15 I.L.R. 608 (Ct. of First Instance of Mons 1948). 18 See., Blum v. Société d’Injection Rapide et de Conservation des Bois, 22 I.L.R. 1007 (Fr. Ct. of Cassation 1955) (upheld on

appeal). See Société d’injection Rapide et de Conservation des Bois v. Blum, France, Court of Cassation. October 27, 1958. 19 See, Katanga Trial Judgment, para. 894, quoting the Lieber Code, Article 14 (emphasis added). As noted by Trial Chamber

II, this corresponds to the approach taken in ICTY, Kordić and Čerkez Appeal Judgment, para. 686. See also The Hague

Regulations 1907, Articles 51 to 53. 20 See Hague Convention Respecting the Laws and Customs of War on Land (1907), 36 Stat 2277, ch 1, art 53(1). 21 See, Krupp Case, p. 1483 22 See, Krupp Case, p. 1483

Therefore, if publicly owned machinery and raw materials from a steel works cannot be lawfully

seized as state moveable property, forcible acquisition of artisanal minerals such as gold and coal

cannot be justified based on the same provision. This reasoning is consistent with a variety of other

decisions, which have condemned the trade in a wide range of state property that was seized then

sold by occupying forces.23 The preferable interpretation of Article 53(1), to cite a Belgium court, is

that “the decision of the enemy to alienate a chattel which he has seized in pursuance of Article 52

or Article 53, and all subsequent alienations, must be regarded as unlawful.”24 This precludes

commercial exploitation of state owned moveable resources, including natural resources like coal.

In addition, Courts have rightly limited the term “expenses of the occupation” to the

humanitarian needs of the local population. The International Court of Justice (ICJ), for instance,

found that exploitation of natural resources “carried out for the benefit of the local population” was

“permitted under international humanitarian law.”25 As a result, if courts agree that the doctrine of

usufruct applies to non-renewable resources, proceeds from natural resource exploitation in

occupied territory must be spent exclusively on the needs of the local population in order to avoid

criminal liability for pillage. Thus, in such a story, a company or business representative perpetrates

pillage by acquiring natural resources through an occupying army when proceeds from the

transaction are not spent on the local population. However, a range of factors are capable of

satisfying this standard. These might include situations where:

(a) the occupier uses proceeds from the sale to purchase weapons or to finance the war effort

more broadly;

(b) where proceeds from resource rents only benefit military or political elites; or

(c) when the proceeds from illicit resource transactions are repatriated to a foreign country

or region beyond the occupied territory.26

All these principles should extend also to territories administered by rebel groups during

civil wars. As previously mentioned, this proposition is legally controversial, because the reason is

that only foreign military armies who establish an occupation are formally able to exercise the

exceptions contained in Hague Regulations. Certain cases have already extended aspects of Hague

Regulations, which include the right to usufruct, to warring factions operating in non-international

armed conflicts. Moreover, offering rebels privileges in the laws of war also creates incentives for

them to comply with this body of rules during the course of their hostilities. Finally, rebel groups

are frequently subject to the law applicable to international armed conflict insofar as they fight as

proxies for foreign governments.27

b) the Armed Conflict Definition:

Illegal exploitation of natural resources as form of a war crime only took place during an

armed conflict. As a consequence, war crimes can only be perpetrated during armed conflict. Due

to the ICC Elements of Crimes, the relevant conduct must have taken place in the context of and

been associated with an international or non-international armed conflict.

23 See, for example, P. v. A.G.K and P. Annual Digest 1948, Case No. 196 (where the Swiss Federal Tribunal found that the

German occupant was not entitled to seize a calculating machine owned by the Polish government, because that machine

was not one used for operations of war.”); see also Ministero Difesa v. Ambriola, Italy, Court of Cassation. June 15, 1951,

ILR (1951) Case No. 213, pp. 690–691 (reiterating that Article 53 of The Hague Regulations “indeed permits occupying

forces to seize cash and securities, depots of arms, means of transportation, magazines and stores, and in general all

movable property of the occupied State, but only in so far as they may be of use in military operations, and not for purposes

of trafficking with individuals.”). 24 See, Thiriez v. Deschamps (1948) ILR, Case No. 205, p. 609. 25 See, DRC v. Uganda Case, 249. 26 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.60. 27 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.61-62.

International Armed Conflict Non-International Armed Conflict

According to Common Article 2 of the

Geneva Conventions, “the present Convention

shall apply to all cases of declared war or of any

other armed conflict which may arise between

two or more of the High Contracting Parties,

even if the state of war is not recognized by one

of them.”

In addition, the Tadic´ Appeal Judgment

found that: “it is indisputable that an armed

conflict is international if it takes place between

two or more States. Thus, in case of an internal

armed conflict breaking out on the territory of a

State, it may become international (or,

depending upon the circumstances, be

international in character alongside an internal

armed conflict) if:

(i) another State intervenes

in that conflict through its troops, or

alternatively, if

(ii) some of the participants

in the internal armed conflict act on

behalf of that other State.”28

The International conflict criteria is

complied through foreign intervention - the

Blaškic´ Trial Judgment found that the conflict

between a non-state group named the Croatian

Defense Council and the Bosnia Herzegovina

Army was rendered international based on the

Croatian government’s military intervention in

Bosnia-Herzegovina.29

The International conflict criteria is also

complied where states wage war against one

another by using domestic military groups as

proxies (e.x. a role in organizing, coordinating

or planning the military actions of the military

group, in addition to financing, training and

equipping or providing operational support to

that group”).30 The ICTY have found that the

armed conflict that took place in the Republika

Nevertheless, pillage is also a war crime

in civil wars. Due to the Geneva Convention,

there is no specifically define term for “civil

war”, however, it does outline the

responsibilities of parties in “conflict not of an

international character”.34

According to the Tadic´ Appeals Chamber

Decision on Jurisdiction, on the definition of non-

international armed conflict in which it found

that “an armed conflict exists whenever there

is… protracted armed violence between

governmental authorities and organized armed

groups or between such groups within a

State.”35

However, taking into account the

duration of the conflict in La Tablada case, the

Inter-American Commission of Human Rights

found that an armed attack by a military group

on a state army barracks that lasted near 30

hours was governed by the laws applicable in

non-international armed conflict because of the

nature of the hostilities between essentially

military groups.36 As well, as concerning the

issue of individuals that were killed, the ICTY,

has concluded that hostilities in the year of 2001

between Macedonian forces and a national

liberation organization constituted a non-

international armed conflict, even though the

armed confrontations between the two groups

caused “just” 168 deaths over the year.37

In addition, the International

Committee of the Red Cross has argued

“ascertain[ing] whether there is a non-

international armed conflict does not depend

on the subjective judgment of the parties to the

conflict; it must be determined on the basis of

objective criteria; the term “armed conflict”

presupposes the existence of hostilities between

armed forces organized to a greater or lesser

28 See, Tadic appeal judgmnent, par. 84. 29 See, Prosecutor v. Blaskic, IT-95-14-T, Judgment, March 3, 2000, par. 75, 76 and 94 (hereafter Blaskic Trial Judgment). The

presence of an estimated 3,000 to 5,000 regular Croatian Army troops was found to have had an impact. 30 See, Tadic appeal judgmnent, par. 137. 34 Geneva Conventions, Common Article 3. 35 See, Prosecutor v. Dusko Tadic aka “Dule” (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-

94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), October 2, 1995, para. 70. 36 See Juan Carlos Abella v. Argentina, Case 11.137, November 18, 1997.

http://www.cidh.oas.org/annualrep/97eng/Argentina11137.htm. 37 See, Prosecutor v. Boškoski, Case No. IT-04-82-T, Judgment, July 10, 2008, paras. 244 and 249.

Srpska within Bosnia was international in

nature because the Federal Republic of

Yugoslavia had overall control over the Army

of the Serbian Republic of Bosnia and

Herzegovina forces during their hostilities with

the Army of Bosnia and Herzegovina.31

Additionally, the ICC has held that because the

Ugandan government was the main supplier of

weapons and ammunition to Congolese rebel

groups, the conflict concerned was

international.32

The International conflict criteria is also

taking place where a foreign army occupies

territory belonging to another state, irrespective

of whether armed violence ever taking place.

Due to the Geneva Conventions of 1949

explicitly included a provision that “the

Convention shall also apply to all cases of

partial or total occupation of the territory of a

High Contracting Party, even if the said

occupation meets with no armed resistance.”33

extent; there must be the opposition of armed

forces and a certain intensity of the fighting.”38

Worth to be mentioned the important

factor for establishing a non-international

armed conflict which is an assessment of

command structure of the conflicting parties.

Therefore, the element of organized military

command might involve assessing whether the

group has an organized hierarchical structure,

controls territory, and is capable of formulating

a common military strategy. As well as other

factors considered in practice include the

existence of a military headquarters, the

promulgation and enforcement of laws, and the

issuance of internal rules and regulations.39

Conclusion:

From March 2014, an armed conflict has been taking place on the territory of Eastern Ukraine,

resulting in more than 8000 deaths; countless injuries; widespread destruction and illegal

appropriation of property; arbitrary arrest and illegal imprisonment; inhuman treatment and

torture; and the displacement of over 2.5 million civilians and other sources of immeasurable

suffering. Considerable amount of evidence documented in various reports by using the framework

of international treaty and customary law relating to conflict and mass atrocities, i.e. international

humanitarian law and international criminal law there is a reasonable basis to believe that the

following war crimes have been perpetrated on the conflict affected area. 40 Although, the conflict

has undoubtedly attained the intensity of an international armed conflict, based on evidence of

direct involvement of members of Russian armed and security forces, and evidence of control

exercised by the Russian Federation over the separatist forces, however, there is mounting evidence

that it may also qualify it as a non-international armed conflict.

Therefore, despite the intensity of the relevant criminalized conduct which is taking place in

Ukraine since March 2014 it may seem to have fall within the context of international armed conflict,

but some may say that according to law practice it would rather be a non-international armed

conflict. However, it would not matter a lot in context of pillaging, because alleged pillaging which

is taking place in Ukraine shares the same elements of crime in both types of the conflict. The ICTY

31 See, Prosecution v. Brdanin, Case No. IT-99-36-T, T. Ch., Judgment, September 1, 2004, par/ 144-155; See also Delacic

Appeal Judgment, par. 28-50. 32 See, Prosecutor v. Katanga et al., Decision on Confirmation of Indictment, ICC-01/04-01/07, 30 September 2008, par. 240. 33 Geneva Conventions, Common Article 2. 38 International Committee of the Red Cross, Working Paper, June 29, 1999. 39 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.27. 40 See., IPHR report, “Fighting impunity in Eastern Ukraine”, Violations of International Humanitarian Law and

International Crimes in Eastern Ukraine, October 2015, p.6-7.

in the Martic´ Trial Judgment, applied the crime of pillage to a conflict that was not qualified as either

international or otherwise, precisely because pillage is criminalized in both types of war.41

3) Pillage of Natural Resources as a War Crime

In accordance to ICC Elements of Crimes, illegal exploiting of natural resources, in particular

Article 8 (2) (b) (xvi) and Article 8 (2) (e) (v) of the Rome Statute must take place in the context of an

armed conflict in order to constitute pillaging. For this matter, to elaborate the meaning of this rule,

the Appeals Chamber of the ICTY has stated, that “[t]he armed conflict need not have been causal

to the commission of the crime, but the existence of an armed conflict must, at a minimum, have

played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the

manner in which it was committed or the purpose for which it was committed.”42

Importantly, the Kunarac Appeal Judgment defined guidelines concerning the relation of

pillaging to war crimes. In determining whether or not the act in question is sufficiently related to

the armed conflict, the Court may take into account, inter alia, the following factors:

the fact that the perpetrator is a combatant;

the fact that the victim is a non-combatant;

the fact that the victim is a member of the opposing party;

the fact that the act may be said to serve the ultimate goal of a military campaign; and

the fact that the crime is committed as part of or in the context of the perpetrator’s

official duties.43

However, that guidelines are not complete, as a matter of fact the civilians can perpetrate

war crimes, combatants can be victims of war crimes, or war crimes can be committed irrespective

of the military’s main goals, and certainly can be perpetrated in an individual capacity.44

It also worth to be mentioned, that it is not necessary to acquire natural resources during

active hostilities directly from a battlefield to perpetrate pillage, for example, by a company. The

illegal exploitation of conflict commodities related to hostilities may appear when the corporate acts

occur after hostilities in a particular region and away from open gunfire.45 As well as, it is not

required to support each side of the conflict, for instance, by the company in order to perpetrate

pillage. The Blaškic´ Case state that, it is not necessary that the crime alleged “be part of a policy or

of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in

actual furtherance of a policy associated with the conduct of war”.46 According to the Dutch Court

case, commercial actors involved in exploiting natural resources from war zones frequently

“stimulate warfare,” by making a contribution to the trajectory of ongoing violence, and become

linked to the military purposes of armed groups, therefore might be liable for pillage as a war

crime.47

Conclusion

41 See, Martic´ Trial Judgment, par. 41-46. 42 See., Prosecutor v. Kunarac et al., IT-96-23 and IT-96-23/1-A, Judgment, para. 58 (February 22, 2002) [hereafter Kunarac

Appeal Judgment]; Prosecutor v. Blagojevic´, Case No. IT-02-60-T, Judgment, para. 536 (January 17, 2005). 43 See., Kunarac Appeal Judgment, par. 59. 44 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.30. 45 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.31. 46 See., Blaškic´ Trial Judgment, para. 70. 47 See., The Hague District Court, Mpambara, March 23, 2009, LJN: BK0520, Rechtbank’s-Gravenhage, 09/750009-06,

http://www.rechtspraak.nl., par. 60, 83, 62.

Therefore, taking into account the resource of wars by definition involve the financing of

armed violence through illicit trafficking in natural resources by commercial actors, the companies

operating in conflict zones will satisfy above standards in a range of circumstances. And companies

which are operating independently in the surrounding conflict, potentially bound by the prohibition

against pillage.

4) Jurisdiction:

a) Based on Nationality (principle of active personality):

The so called “nationality” or “active personality” principle entitles states to assert criminal

jurisdiction over offenses perpetrated by their nationals overseas. The concept extends to companies

registered within a state’s jurisdiction as well as individual citizens operating abroad (i.e. even if

individual will commit criminal offence outside the national territory). So, the first and most

compelling basis for prosecuting commercial actors for the pillage of natural resources involves state

prosecutors bringing charges against their own companies or business representatives.48

Worth to be mentioned, that other states are also capable of investigating and charging

foreign companies as well as their representatives for pillage based on nationality jurisdiction. For a

good illustration, Russian courts could have exercised jurisdiction over the infamous Russian arms

smuggler Viktor Bout for what a UN panel of experts described as a leading role in the transportation

of illegally acquired natural resources from some theaters of war to Western markets49, but they

didn’t. There are thus, countries as i.e. Japan, Argentina, South Africa established jurisdictional

grounds that allow foreign courts to adjudicate allegations of pillage when law enforcement

mechanisms within war-torn societies are no longer functioning adequately.

b) Universal jurisdiction:

Taking into account the fact, that the war crimes clearly meet the requisite degree of gravity.50

The universal jurisdiction based on the idea that certain offenses are sufficiently grave and so all

states can assert criminal jurisdiction over the perpetrators regardless of where the offenses took

place or the nationality of the respective participants. Nevertheless, there are at least two different

variations of universal jurisdiction:

a) One group of states has enacted a more restrained form of universality that requires the

presence of the accused within the state’s territory before jurisdiction can be asserted (i.e.

Canada).

b) Other group of states which enacted an unconditional or pure rendition of universal

jurisdiction, which presents states with even greater possibilities for the judicial scrutiny

48 Interesting note, that the principle of active personality has gained such a strong role within continental legal systems in

most of the countries, that the Swedish Supreme Court has upheld convictions for violations of the Swedish traffic code

committed on foreign roads, See, Public Prosecutor v. Antoni, 32 I.L.R. 140 (App. Ct. of Svea 1960). 49Ugolovnyi Kodeks [U.K.] [Criminal Code] art. 12(1) (Russ.) http://www.russian-criminal-

code.com/PartI/SectionI/Chapter2.html (“[c]itizens of the Russian Federation and stateless persons who permanently

reside in the Russian Federation and who have committed crimes outside the boundaries of the Russian Federation shall

be brought to criminal responsibility under this Code…”). 50 As a Swiss Military Court found when exercising universal jurisdiction over a Rwandan mayor accused of war crimes,

“given their qualification as war crimes, these infractions are intrinsically very serious.” (Niyonteze Case, p. 37

(“[q]ualifiées de crimes de guerre, ces infractions sont intrinsèquement très grave”).)., See also, The Kupreškic´ Trial

Judgment affirmed this proposition in declaring that “most norms of international humanitarian law, in particular those

prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus

cogens, i.e. of a non-derogable and overriding character.” (Prosecutor v. Kupreškic´ et al., Case No. IT-95-16-T, Judgment,

para. 520 (January 14, 2000).).

of corporate pillage. These unconditional versions of universal jurisdiction formally

disregard the requirement that the accused be present within the territory (i.e. Germany).

A good example of unconditional jurisdiction will be the following example of the Courts,

particularly in Spain, which have already proved willing to exercise unconditional universal

jurisdiction over individuals for pillaging natural resources. In February 2008, a Spanish judge

confirmed the indictment of several high ranking Rwandan military officials for a range of

international crimes that included the pillage of natural resources in the Democratic Republic of the

Congo.51

Thus, the case remains an important illustration of the potential of universal jurisdiction. In

any circumstances, it is plausible that universal jurisdiction could be employed to charge businesses

and their representatives implicated in the illegal acquisition of natural resources from war zones.

c) The jurisdiction of International Courts:

The ICC enjoys the ability to commence proceedings in a large number of states, either

against nationals of states parties to the court’s statute or in relation to citizens of non-states parties

who have perpetrated international crimes within the territory of a member state.52 Thus, the ICC is

the more likely venue for prosecution of corporate representatives in the pillage of natural resources

nowadays. To make it simple, the ICC has jurisdiction over French and Dutch nationals who

perpetrate pillage in China, but also over Russian or Chinese business representatives responsible

for pillaging natural resources from the Ukrainian sole during it ongoing conflict and other

situations within the court’s territorial jurisdiction.53

Noteworthy, the ICC prosecutor once, during an address to the United Nations General

Assembly assure the globe on a striking terms in his personal report that: “[d]ifferent armed groups

have taken advantage of the situation of generalized violence and have engaged in the illegal

exploitation of key mineral resources such as cobalt, coltan, copper, diamonds and gold… Those

who direct mining operations, sell diamonds or gold extracted in these conditions, launder the dirty

money or provide weapons could also be authors of the crimes, even if they are based in other

countries.”54

Such kind of statements not only identify the existance of a supranational jurisdiction capable

of adjudicating acts of pillage perpetrated by business representatives, they also impart a degree of

pressure on national courts to exercise other forms of jurisdiction over these offenses.

Conclusion:

The ICC does have a territorial jurisdiction over crimes allegedly committed in Ukraine in

relation to the ongoing conflict/hostilities between the Ukrainian armed forces and those allied to

51 See Jean-Paul Puts (trans.), Tribunal Central d’Instruction No. 4, Cour Nationale, Administration de la Justice Royaume

d’Espagne, Résumé 3/2000 – D, p. 23 www.veritasrwandaforum.org (« Les actes de pillage ont servi, tantôt au financement

de la guerre et des opérations militaires subséquentes, de mêmes que pour l’enrichissement personnel des hauts

commandants militaires de l‘A.P.R/F.P.R. »). 52 The Rome Statute of the International Criminal Court, Part 1 “Establishment of the Court”. 53 Statute of the International Criminal Court, Art. 12(2) (stating that “the Court may exercise its jurisdiction if one or more

of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph

3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel

or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a

national.”). See also Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-State

Parties: Legal Basis and Limits, 1 J.Int’l Crim. Just. 618–650 (2003) (affirming the Courts ability to seize jurisdiction over

nationals of non-state parties who perpetrate international crimes in states party to the convention). 54 Luis Moreno-Ocampo, Second Assembly of States Parties to the Rome Statute of the International Criminal Court Report

of the Prosecutor of the ICC (September 8, 2003).

the Russian rebel movement and Russian armed forces, due to the lodged declaration by Ukraine

on acceptance to exercise a jurisdiction of the ICC within the Article 12 (3) of the Rome Statute.55

Although, till the official legal analysis has yet to be undertaken, many of the incidents

alleged in this article as well as substantiated by open sources, are suggestive of the possible

commission of crimes by legal entites and/or their affiliated individuals which were active during

their “pillaging” activities in Ukraine and which could fall under the jurisdiction ratione materiae of

the ICC. Therefore, the ICC could exercise personal jurisdiction over nationals of Ukraine and those

who are commiting the crimes on it territory and who may be criminally responsible for relevant

crimes.

5) The obligation to Prosecute:

The obligations to prosecute arise from a range of sources in both international law and

domestic criminal law. States not only enjoy jurisdiction over acts of pillage; there are also a range

of obligations to investigate and prosecute appropriate cases. These legal duties create an

overlapping network that affect a prosecutor’s action of discretion when faced with allegations of

commercial pillage and develop positive obligations on states that may have implications for

government officials, international institutions, commercial players or political bodies that faced

with such kind of issues.

The war crimes in it original sense, create an obligation to investigate and prosecute acts of

pillage. In addition, pillage is not technically a grave breach of the Geneva Conventions, there is

significant evidence that customary international law now extends the same duty to all war crimes.

For example, the International Committee of the Red Cross’ study of customary international

humanitarian law concludes that states must “investigate war crimes allegedly committed by their

nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”56

Noteworthy, the notion of “complementarity” in the Romes Statute of the ICC creates

another legal incentive for domestic courts to investigate and prosecute acts of commercial pillage

that fall within their jurisdiction of the ICC. In other word, a case of commercial pillage will only be

admissible before the ICC if national courts that enjoy jurisdiction are “unwilling” or “unable” to

bring proceedings.57 For example, in one recent instance, the British trial suggests that the pressure

of complementarity may have implications for allegations of commercial liability for pillage trying

their own soldiers for war crimes allegedly perpetrated in Iraq.58

Some of national criminal jurisdictions also contain obligations for courts to hear allegations

of pillage, primarily by restricting the scope of discretion open to prosecutors. In a number of civil

law countries, for instance, a doctrine called partie civile enables victims or their representatives to

bring charges directly before criminal courts.59 Therefore, in an appropriate context, partie civile could

also be used to initiate a criminal charge for pillaging natural resources.

55 Art. 12(3) of the Stature, the scope has been extended and covers events in Crimea and Donbass without end date. 56 Customary International Humanitarian Law Study, Rule 158, Vol. I, at 607. 57 ICC Statute, art. 17(1)(a) (“Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a

case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless

the State is unwilling or unable genuinely to carry out the investigation or prosecution.”). 58 See Steven Morris, “British soldier admits war crime as court martial told of Iraqi civilian’s brutal death,” The Guardian,

September 20, 2006, (reporting on the trial of British soldiers for inhumane treatment perpetrated in Iraq). 59 To cite one apt example, a group of nongovernmental organizations recently used partie civile to lodge a criminal

complaint against the multinational timber company Dalhoff, Larsen, and Horneman for allegedly receiving stolen timber

during the Liberian civil war. (See Global Witness, Bankrolling Brutality—Why European Timber Company DLH Should

Be Held to Account for Profiting from Liberian Conflict Timber, Briefing Document—18/11/2009, http://

www.globalwitness.org/media_library_get.php/1152/1280525282/briefing_paper_eng.pdf.)., For a helpful outline of partie

civile in Belgium and France, see Mireille Delmas-Marty and John R. Spencer, European Criminal Procedures, 94, 247

(2002).

In Ukraine, the criminal liability for pilagging defined in Chapter XX of Criminal Code of

Ukraine, Article 438, according to which “pillaging of national property in occupied territory” is a

violation of the laws and customs of war which are punishable by a way of imprisonment from 8

years till life sentence depends circumstances and consequences.

6) Appropriation of Property

Due to the ICC Elements of Crimes, a person/companies accused in pillaging of natural

resources must “appropriate” property during armed conflict in order to commit pillage directly or

indirectly. For instance, companies operating in conflict zones could “appropriate” natural resources

directly from the rightful owners by extracting the resources themselves. In other cases, companies

could "appropriate" natural resources indirectly from the owner by purchasing the resources from

an intermediary. Practices generated three instances of direct appropriation of natural resources60:

1) companies which appropriate natural resources directly from the owner by collaborating

with a warring army.

2) companies also exploit natural resources directly from the owner by relying on the

authorization of a warring party to exploit resource wealth. The close to the current situation

example, when the U.S. Military Tribunal at Nuremberg found Paul Pleiger, the manager of Mining

and Steel Works East Inc. (BHO), guilty of pillaging coal from mines located in Poland during WW2.

According to the tribunal, BHO exploited these Polish coal mines after the Reich government issued

a so-called trusteeship to the company. Given that the Reich government had no authority to seize

these properties, Pleiger became personally culpable for the appropriation his company carried out.

In particular, Pleiger personally appointed a local manager to the mines, maintained an active

interest in the development of these sites, and supervised a yield in excess of aprox. 50,000 tons of

coal from the area each year of the war.61. or

3) legitimate concession granted to the companies provides another common form of direct

appropriation of natural resources from an owner.

According to the considerable amount of international precedent, the ICC Elements of

Crimes term “appropriate” also includes indirect appropriation from an intermediary by purchasing

stolen property. For instance, openly receiving stolen property constitutes pillage.62 A good example

is a Tribunal of Military Government for the French Zone of Occupation in Germany tried and

convicted representatives of the Roechling firm for pillage arising out of the commerce in illegally

seized scrap metal from the German Raw Materials Trading Company (ROGES). Herman Roechling,

the director of the Roechling firm, was convicted of pillage for purchasing illegally seized property

known as “Booty Goods” from ROGES. The tribunal rejected Roechling’s claim that the seizures

were justified by the Reich annexing French territory because “[k]nowingly to accept a stolen object

60 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.33-34. 61 See., U.S.A. v. Von Weizsaecker et al. (Ministries Case), 14 Trials of War Criminals 314, p. 741 (1949), [hereafter Ministries

Case]. BHO standards for Berg und Huettenwerke Ost. 62 See., Judgment of the Permanent Military Tribunal at Metz, 2nd December, 1947, in 9 Law Reports of Trials of War Criminals,

p. 65. Likewise, a German settler in France named Elisabeth Neber was found guilty of receiving crockery stolen by her

nephew from a French woman, which she took with her when returning to Germany towards the end of the war. Id., See

also, Trial of Alois and Anna Bommer and their Daughters, Permanent Military Tribunal At Metz, 9 Law Report of Trials

of War Criminals, (February 19, 1947), p. 64 [hereafter Bommer Case]., and See also, IG Farben Case, p. 1143, pp. 1146–

1147 (convicting Farben executives of pillage for purchasing the Mulhausen Plant from the German Reich and for

purchasing the oxygen and acetylene plants, referred to as Strassbourg-Schiltigheim, under similar circumstances)., See

lso, Krupp Case, p. 1351. Similarly, members of the firm Krupp were convicting of pillage for purchasing machinery from

a German appointed administrator who had seized the machinery from a Jewish owner.

from the thief constitutes the crime of receiving stolen goods. Hermann Roechling was thus

convicted of pillage on the basis that he was “a receiver of looted property.”63

Therefore, irrespective of whether the commercial actors were involved in the initial

appropriation of the resources they will commit pillage as principal perpetrators of war crimes even

though they were not involved in the initial misappropriation. Sequently, the legal entities and/or

their affiliated individuals which are allegedly guilty in a pillaging of national property, but not

exclusively in occupied territory of Ukraine are the following:

a) the manufacturing companies which are working in the occupied territories of Ukraine,

however,

b) the legal enterprises that were re-registered or registered on the territory of Ukraine which

is under the control of the Ukrainian government, and, therefore,

c) the legal enterprises which are continue to pay taxes to the central budget of Ukraine, often

simultaneously paying a certain amount of money to the "local budgets» of “DPR” and “LPR”

rebels.64

* Note: To avoid a difficult economic isolation in the occupied territory of Ukraine, some of

the large enterprises mostly works with in the occupied territories of Ukraine.

No

.

Perpetrator Info Facts Contextual link

1. PE "Anntey-B" Due to the Security Service of

Ukraine (SSU), in years of 2015-

2016, the director and accountant

of PE "Anntey-B," and the former

head of state enterprise "Kyiv

Regional Forestry Department"

have been allegedly supplied

timber to the occupied territories

of Ukraine, in particular, to the

so-called “DPR” and “LPR”

territories by the PE "Anntey-B"

on its contracts with the coal

industry legal entities which are

located on occupied territories of

Ukraine.65

The PE "Anntey-B" allegedly supplied

timber to the so-called “DPR” and

“LPR” territories, due to the contracts

with LLC "DTEK Sverdlovantratsit",

LLC "DTEK Rovenkiantratsit", SE

"Pivdennodonbasskya Shakhta №3", SE

"Makiyivvuhillya", SE

"Dzerzhynskvuhillya", SE "

Shakhtoypravlinnya"

“Pivdennodonbasskya №1”, ALC

"Shakhta "Belozerskay", LLC "DTEK

Pavlogravuhillya", LLC "DTEK

Dobropillyavuhillya", PJSC "DTEK

Shakhta Komsomolets Donbassy" SE

"VC" Krasnolymanska ". Considerable

part of private companies from this list

are included in the group of Rinat

Akhmetov corporation (PJSC System

Capital Management, SCM).66

2. PE "Trading

house"

Galpidshipnik"

According to SSU, the products'

of Galpidshipnik have been

allegedly marketed in the

During the SSU search in the head office

of PE "Trading house" Galpidshipnik"

in Lviv, Ukraine, the investigators has

63 See., France v. Roechling, 14 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law

No. 10, app. B, (1949), pp. 1113, 1117–1118 [hereafter Roechling Case]. 64 See, The National Institute for Strategic Studies, “"Вугільна промисловість України в умовах гібридної війни".

Аналітична записка”, http://www.niss.gov.ua/articles/1890/., See., also, Сайт газети «ВЕСТИ». “Предприятия

Донбасса стали работать по законам офшоров”, 18Oct2015, http://vesti-ukr.com/donbass/119537-predprijatija-

donbassa-rabotajut-po-zakonam-ofshorov. 65 See., Hromadske.ua, “СБУ підозрює підприємства Ахметова у постачанні деревини на окуповані території”,

23May2016, http://hromadske.ua/posts/sbu-pidozriuie-pidpryiemstva-akhmetova-u-postachanni-derevyny-na-

okupovani-terytorii. 66 Ibid.

occupied territory of Ukraine

(Donetsk) for the rebels military

equipment by it former affiliate

company which was liquidated,

however, on the other hand

registered under the “laws” of

"DPR", and governed by the

same former director of its

former Donetsk representative

office - PE "Trading house"

Galpidshipnik" Igor Gyravel –

currently, it is a PE "Trading

house" Galpodshipnik MTS".

found many interesting things. For

example, invoices for shipments of

inventory, where the sender is PE

"Trading house" Galpodshipnik MTS,

with a bank details which are the same

as in the company registered under the

“laws” of "DPR" - PE "Trading house"

Galpodshipnik MTS". Besides, the

goods from Lviv PE "Trading house"

Galpidshipnik" can be easily purchased

in the occupied Donetsk. 67

3. PE “Sodeistvie” The SSU has accused the

Sodeistvie PE (the legal entity

which is registered in

Kostiantynivka, Donetsk region,

with the owner named Tatiana

Avtonomova), as a supplier of

coal from the occupied territory

of Ukraine to power plants of

state-run public PJSC

Centrenergo (the sole Ukraine

State Power Generation

Company) on financing

terrorists. Worth to be noted, that

the son of the PE “Sodeistvie”

owner - Dmitry Avtonomov,

was listed on the site of the

terrorist organization “DPR” as

the head of the private

enterprises "Donbassugol" and

"Vostokuglemet".68

SSU said that Sodeistvie PE, in exchange

of financing of "DPR", received a permit

from top managers of the terrorists'

organization to extract coal (without

permits from Ukrainian government)

on the territories that are not under the

control of Ukraine. SSU also said that

the owner of Sodeistvie PE transferred

the cashless money received for coal

that was sold, to the accounts of his

companies located outside Ukraine, in

particular, Trade Systems LLC (Rostov,

Russia, registered to Yevgeny Teplov).

Then, these cash have been allegedly

transferred via the uncontrolled

sections of the Ukrainian border to the

territory of "DPR" where they are sent to

the so-called "DPR Republican Bank" in

the form of "taxes" and "charity

assistance" (according to a ruling of the

Zhovtnevy District court of Mariupol

(Ukraine) of August 11, 2015 published

in the state register of court rulings).69

4. Arida Global

Limited70

It was allegedly supplying

Ukrainian coal from the

occupied territories of Ukraine to

the PJSC "Centrenergo". In a

One of the employees from one of such

power stations informed media, that

received coal of unknown origin (so-

called South African coal), allegedly

67 See, 21tv.ua, “Зі Львова в "ДНР": як українське підприємство продає сепаратистам деталі для БТРів”, 17Mar2016,

http://24tv.ua/zi_lvova_v_dnr_yak_ukrayinske_pidpriyemstvo_prodaye_separatistam_detali_dlya_btriv_n668126. 68 See, InterFax-Ukraine, “SBU accusing coal supplier to Centrenergo in financing terrorists”, 04Sep2015,

http://en.interfax.com.ua/news/general/288211.html. 69 See., InterFax-Ukraine, “СБУ обвиняет поставщика угля на ТЭС "Центрэнерго" в масштабном финансировании

терроризма”, 04Sep2015, http://interfax.com.ua/news/economic/288196.html. 70 Related with Mikita Poz, but media relate it with Ukrainian businessman Sergei Kuzyara and Victor Medvetchuk, as

well as Ukrainian politician Taras Kozak and JSC "Gazprombank" . See, Pravda, “Операція "Легалізація". Як Медведчук

і Ко "вПАРюють" вугілля Україні”, 03Feb2016, http://www.pravda.com.ua/articles/2016/02/3/7097702/., Also see,

Epravda, “Постачати "Центренерго" вугілля із зони АТО буде фірма, пов'язана з "Газпромбанком"”, 25Aug2015,

http://www.epravda.com.ua/news/2015/08/25/556712/.

recent case Arida Global Limited

purchased 76 thousand tons of

coal in South Africa, then

brought it to the Black Sea, after

which the bulk carrier of actual

coal did not go into Ukrainian

ports (s.e. “South" Odessa Port)

saving a thousand kilometers,

but to a Russian. From there, the

coal was taken to the border with

Ukraine by land (at the border

crossing point controlled by

Ukraine), where it was acquired

by SE "Ukrinterenergo". After

that, this state-owned company

resold it to PSC "Centrenergo",

which in turn brought to various

coal power stations. 71

have a significantly caloric

concentration in it, which is higher and

which has a lower ash then the common

coal from South Africa. Additionally, it

had some characteristics of Ukrainian

coal which is present in the occupied

territory of Ukraine. Although, he could

not name the exact numbers of such

characteristics, because he had not

access to laboratory data input control.72

5. Ltd. "Farkon

Ltd."

This company have entered into

an agreement dated 23

November 2015 with PJSC

"Centrenergo" on coal supply (as

a Supplier) from occupied

territories of Ukraine in the

amount of 20 000 tons with the

contract price of UAH 26.40

million.73 And at the same time

where doing that without any

permission from Ukrainian

government.

The company was founded in May 2015

in the city of Vugledar, Ukraine, by two

residents of Donetsk - Arsen Adamyan

and Vyacheslav Faryha. Last year,

Ukrainian investigators tried to arrest

the coal of "Farkon" entity together with

the fuel company "Antares-Yug" in a

criminal case regarding the financing of

“DPR”. However, the court after a

positive reaction to the arrest of

"Antares-Yug" goods had returned the

case for completion to the investogators

on "Farkon" issue. After that,

investigators no longer sought the court

with questions about "Farkon" and

inquiry was stopped.74

6. Ltd. "Integrall" This company have entered into

an agreement dated November

13, 2015 with the PJSC

"Centrenergo" on coal supply (as

a Supplier) from occupied

territories of Ukraine in the

amount of 26 000 tons of coal

contract price of UAH 34.32

The owners of the company - Oleg

Kuritsyn and Lydia Shalygin which are

registered in occupied city of

Anthracite, Ukraine (“LPR”) appeared

in a scandal with President Poroshenko

appointed deputy head of the SSU

Vitaly Malikov and Oleg Frolov on the

land seized issued near Kyiv, Ukraine.76

71 See, Pravda, “Операція "Легалізація". Як Медведчук і Ко "вПАРюють" вугілля Україні”, 03Feb2016,

http://www.pravda.com.ua/articles/2016/02/3/7097702/. 72 Ibid. 73 See, Ukrrudprom, “Вугілля для “Центренерго” від російського екс-сенатора (перелік постачальників на 3

мільярди)”, 04Feb2016,

http://ukrrudprom.ua/digest/Vugllya_dlya_TSentrenergo_vd_rosyskogo_ekssenatora_perelk_postac.html. 74 Ibid. 76 Ibid.

million.75 And where doing that

without any permission from

Ukrainian government.

7. Ltd. "Dantrade

ltd."

This company have entered into

an agreement dated November

13, 2015 with PJSC "Centrenergo"

on coal supply (as a Supplier)

from occupied territories of

Ukraine in the amount of 80 000

tons of coal contract price of

UAH 104,00 million.77 And

where doing that without any

permission from Ukrainian

government.

Such a company with registered capital

of 1 thousand UAH after an agreement

with PJSC "Centrenergo" was registered

on Kiev inhabitant Nikolai Vlasenko.

Before, the founder of the company was

Oksana Gornostaeva from Krasny Luch

in Luhansk region, Ukraine. A person

with such a name is known as the

engineer of the equipment department

logistic support of Rinat Akhmetov JSC

"Kyivenergo".78

8. Benecol

international

limited

This company have entered into

an agreement dated 12

November 2015 with PJSC

"Centrenergo" on coal supply (as

a Supplier) from occupied

territories of Ukraine in the

amount of 150 000 tons of coal

contract price of 10.05 or 228.71

million of USA dollars.79 And at

the same time where doing that

without any permission from

Ukrainian government.

According to the British company

register database, the company was

founded in December 2014 in the town

of Hitchin, Hertfordshire county in

southern England. The authorized

capital is 1 pound, company activities

has not been specified in the registry,

the report for 2015 is not delivered. Sole

owner of the company its listed director

- 79-year-old Jeffrey Brown. According

to the British registry, Brown was / is a

director in 20 companies, including

those belonging to the Ukrainians, for

instance - "Sun Generation Limited", the

owner of which is Igor Morkotonov, the

present director - Morkotonov Dmitry

(his son). Igor Morkotonov believed to

be in a friendly relations with a current

ministry of interior affairs of Ukraine -

Arsen Avakov.80

9. Ltd. "SHU"

Donbass"

This company have entered into

an agreement dated 16 October

2015 with PJSC "Centrenergo" on

coal supply (as a Supplier) from

occupied territories of Ukraine in

the amount of 400 000 tons of

coal contract price of UAH

528,00 million.81 Did not receive

a permission from Ukrainian

The company was founded in Selidovo,

Ukraine by two other companies - Ltd.

"Energy-processing complex"

Donbasvuhlepererobka" Dmitry

(beneficiaries (Donetsk team) - Dmitry

Burlaka Alexander Nazarenko, Yuri

Baranov, Lyudmila Zagorodnya) and

formal state PJSC "Shahtoypravlinnya

Donbass", which is still registered in the

occupied Donetsk.82

75 Ibid. 77 Ibid. 78 Ibid. 79 Ibid. 80 Ibid. 81 Ibid. 82 Ibid.

government on such kind of

operations.

10. Ltd. "HZF

Shidno-

Donbasska"

This company have entered into

an agreement dated October 15,

2015 with PJSC "Centrenergo" on

coal supply (as a Supplier) from

occupied territories of Ukraine in

the amount of 100 000 tons of

coal contract price of UAH

132.00 mln.83 Did not receive a

permission from Ukrainian

government on such kind of

operations.

Such a company was registered in the

city of Severodonetsk, Ukraine and

signed on Denis Kopashko, which is

from city of Rovenky, Ukraine

(occupied territory of Ukraine).84

11. Ltd.

"Shahtarsktrans

"

This company have entered into

an agreement on October 8, 2015

with PJSC "Centrenergo" on coal

supply (as a Supplier) from

occupied territories of Ukraine in

the amount of 40 000 tons of coal

contract price of UAH 52.80

million.85 And at the same time

where doing that without any

permission from Ukrainian

government.

Mariupols’ firm which is registered on

the inhabitant from the occupied

territory of Ukraine (“DNR”, city of

Torez) - Viktor Medvedev. A few days

before the deal with PJSC "Centrenergo"

the director of the company became

Maxim Orlov.86

12. PJSC

"Gazprom"

19 February 2015, the Russia

Federation began an active gas

supply to the "LPR" and "DPR"

through previously preserved

measuring stations such as

"Prokhorivka" and "Platovo" that

are not under the control of

Ukrainian government.87

"Gazprom" believes that such supplies

are carried out under contract with

Ukrainian - "Naftogaz Ukraine", as a

result it allegedly increased Ukrainian

debt before Russia. Kyiv, officially

refused to pay for these supplies, since

there are no any representatives of

Ukrainian Naftogaz on places and the

company cannot control the flow of gas

through them. In addition, the militants

on occupied territories are not paying

fees for a consumed fuel. Thus, in April

2015 the Russian Minister of Energy

Alexander Novak said that "Gazprom

have already put about 400 million

cubic meters of Russian gas to the

Donbass, and deliveries are continuing.

So, in case of non-payment, the Kyiv

will be sued".88

83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid. 87See, New Ukrainian Institute, “Економіка окупованого Донбасу”, May 2015,

http://newukraineinstitute.org/media/news/531/file/Donbass15.05.2015.pdf. 88 See, Portal, Портал «Деловая столица», «Міністр енергетики РФ стверджує, що "Нафтогаз" повинен

13. Group

"Industrial

Union of

Donbass"

It is a powerful financial-

industrial group, which is

wholly owned by the Russian

owner. Importantly, that in the

city of Alchevsk, Luhansk

region, are located two main

metallurgical and power

companies - "Alchevsk

Metallurgical Factory" and

"Alchevsk Coke Plant".89

Constructed metal production of

"Alchevsk Metallurgical Factory" and

production from "Alchevsk Coke Plant"

are exported to Russia without any

customs procedures from the occupied

part of Ukraine. In addition, at the end

of September 2015, appeared some

information about the intentions of the

leadership of "Alchevsk Metallurgical

Factory" to export it metal production to

the Europe.90

14. PJSC System

Capital

Management,

SCM

This is the main business

structure of Rinat Akhmetov and

the largest financial and

industrial group in Ukraine.

Notably, that not all the

companies in SCM have a

permission from Ukrainian

government on trade or

anything else on the occupied

territories of Ukraine.

Akhmetov's SCM - is the largest owner

of companies under the control of the

so-called “DPR” and “LPR”. In Donetsk

he owned dozens of different assets -

from steel plants to pharmaceutical

shop. Considerably, despite the

transport blockade and war, SCM have

found ways to ensure their enterprises

on the occupied territories with raw

materials and export products.91

15. Holding

"Donetskstal"

Long time was a great taxpayer

in the “DPR”, the sole owner is a

Russian millionaire Viktor

Nusenkis. Holding includes

itself Donetsk Metallurgical

Plant (DMP), and two coking

enterprise in Makiyivka and

Yasinovataya, Donetsk region,

Ukraine.

DMP is able to provide their companies

with raw materials and carry out export

of finished products during the fighting

in eastern part of Ukraine. In Spring

2015, while deprived of needed raw

materials delivered from Kriviy Rig

(controlled territory of Ukraine), DMP

adjusted deliveries from Russia: the

DMP buys ore (mineral) in the

"Karelskogo okatisha" (the part of

"Severstal" group, lead by Alexei

Mordashov). Importantly, Russian raw

materials imported in Ukraine through

Ukrainian controlled checkpoint in

Kharkiv. As well, as exports went

through the Ukrainian ports of

Mariupol and Berdyansk.92

16. SE "Shahta

K.І.Kіselova"

Have been selling a coal to the

PJSC "Centrenergo", however,

such state enterprise is from

PJSC "Centrenergo" has recently paid

SE "Shahta K.І.Kіselova” about 100 mln.

UAH for delivered coal from occupied

оплатити поставки газу в «ДНР» та «ЛНР», 04apr2015, http://www.dsnews.ua/economics/ministr-energetiki-rf-

utverzhdaetchto-gazprom-i-naftogaz--04042015140500. 89 See, The National Institute for Strategic Studies, “"Вугільна промисловість України в умовах гібридної війни".

Аналітична записка”, http://www.niss.gov.ua/articles/1890/. 90 See., Украинская правда, “Алчевський меткомбинат уговаривает боевиков пустить его товар в Европу – ИС”,

25Sep2015, http://www.pravda.com.ua/rus/news/2015/09/25/7082597/. 91 See., RBK Ukraine, “Економіка невизнаних ЛНР і ДНР тісно пов'язана з РФ”, 15Jun2016,

https://daily.rbc.ua/ukr/show/ekonomika-nepriznannyh-lnr-dnr-tesno-svyazana-1434382546.html. 92 See., RBK Ukraine, “Економіка невизнаних ЛНР і ДНР тісно пов'язана з РФ”, 15Jun2016,

https://daily.rbc.ua/ukr/show/ekonomika-nepriznannyh-lnr-dnr-tesno-svyazana-1434382546.html.

Torez, Donetsk region, located in

the occupied territory, and

allegedly re-registered in

Ukraine. 93 There is no any

indication in media, that it

receives a permission from

Ukrainian government on such

kind of operations.

territory. The last, in turn, allegedly

transferred it funds to the

abovementioned PE “Sodeistvie” which

sent them to the accounts of SE

"Torezantratsit" - 14 mln. UAH, SE

"Shahtarskantratsyt" - 16 mln. UAH, SE

"Snizhneantratsyt" - 15 mln. UAH, SE

"State coal energy company" - 13 mln.

UAH and SE "Makiivevygol" - 14 mln.

UAH. Notheworthy, that 28 million

have been mysteriously settled in the

accounts of companies engaged in the

transfer of cash funds.94 It should be

emphasized, that this "state enterprise"

which de jure is SE "Shahta

K.І.Kіselova" pays it above partners

who are controlled and worked under

the occupied authorities. Also,

interesting, that all of the above “SE” is

not re-registered in Ukraine.

17. Ltd. "Uhlesnab" The head of Ltd. "Uhlesnab" is

from the city of Shakhta,

Donetsk region, which is

registered in February 2015 on

Sergey Velmytskyi. Mr.

Velmytskyi brother whose name

is Andrew, is an ex-deputy of the

Legislative Assembly of the

Rostov region, Russian

Federation.

The company called "Eksportuhol", was

registered on the same day as Ltd.

"Uhlesnab", and headed by Sergei

Velmytskyi. The owner of both listed

companies is Galina Sulina.

Noteworthy, that soon after the

registration of the companies, there

were numerous announcements from

"Eksportuhol" on sale of coal from the

city Gukovo which is located in 1.5 km

from the Russian-Ukrainian border and

has a direct road and rail connections to

the so-called “LPR” on specialized

traders web-sites. In addition, the head

of the so-called “LPR” customs service

Andrei Karpak, allegedly claimed that

the volume of coal export from “LPR” to

Russia Federation is in amount of 3

thousand tons per day.95

18. - Ukrenergy

Coal Ltd,

- Valeya LLC,

- Coalimex

Trade Ltd,

Ukrainian and foreign coal

companies related to Ukrainian

officials and businessmen’s,

which appear to be the biggest

coal suppliers of coal from

In August 2015, the Ministry of Energy

and Coal Industry of Ukraine, in

response to the deputy's request of

Victoriya Voytsitska disclosed a list of

coal suppliers to the PJSC

93 See, Kompromat, “100 мільйонів на рахунки терористів: Володимир Демчишин втягнув Міненерговугілля у

черговий корупційний скандал”, 14May2015, http://kompromat1.info/articles/14942-

100_miljjoniv_na_rahunki_teroristiv_volodimir_demchishin_vtjagnuv_minenergovugillja_u_chergovij_koruptsijnij_skan

dal/print. 94 Ibid. 95 See., RBK Ukraine, “Економіка невизнаних ЛНР і ДНР тісно пов'язана з РФ”, 15Jun2016,

https://daily.rbc.ua/ukr/show/ekonomika-nepriznannyh-lnr-dnr-tesno-svyazana-1434382546.html.

-Krasnobrodsky

LLC,

- TD

Donbassantrats

it LLC,

- Ukrainian

Industrial

Trade Alliance

LLC,

- Donbass

vuglepererabot

ka LLC,

- Dobre Teplo

LLC,

- Integrated

Energy

Complex LLC,

- Sovevik

Holding

Limited,

- Ltd. The

revival of

Lugansk region,

- LLC Sunrise-

Ukraine,

- LLC Infreyd,

etc.96

occupied territories of Ukraine to

the PJSC "Centrenergo".97 And

which are due to the media

allegedly conducting their

activity without a permission

from Ukrainian government.

"Centrenergo". The Ministry of Energy

and Coal Industry of Ukraine also

provided a complete list of companies

which were supplying a coal to the PJSC

"Centrenergo" in the I (first) and II

(second) quarter of 2015 with an

indication of the volume and cost of

supply.98

19. - JSC

Luganskmlyn,

- JSC VO Conti,

- PJSC AVK,

- LLC Delita,

- Ltd. Medical,

- NGO Biocon,

- LLC Biocon,

- LLC Ecolla,

- LLC Sarepta,

- LLC Attol

Paint Ukraine,

- LLC Omega,

These legal entities are allegedly

making goods in the occupied

territories of Ukraine under the

control of “DPR” and “LPR”

according to the media. 100

As a result, they are selling such

manufactured products to various

markets in Ukraine, specifically, due to

the media, the buyers of that products

are one of the biggest supermarkets in

the country (Ukraine): such as Novus,

Fora, Auchan, Furshet, Velyka

Kyshenya, ATB and Silpo.101

96 See., Interfax-Ukraine, “"Центрэнерго" в I кв.-2015 закупило 1 млн тонн угля у малоизвестной иностранной

компании почти за 2 млрд грн”, 03Aug2015, http://interfax.com.ua/news/economic/281809.html. 97See., Delo.ua, “Стало известно, кто поставлял уголь из зоны АТО на "Центрэнерго"”, 25Aug2015,

http://delo.ua/business/stalo-izvestno-kto-postavljal-ugol-iz-zony-ato-na-centrenergo-

302564/?supdated_new=1473962857. 98 See., Interfax-Ukraine, “"Центрэнерго" в I кв.-2015 закупило 1 млн тонн угля у малоизвестной иностранной

компании почти за 2 млрд грн”, 03Aug2015, http://interfax.com.ua/news/economic/281809.html. 100 Ibid. 101 Ibid.

- LLC Ukrainski

promyslovi

resurcy.99

7) The Natural resources ownership:

a) Natural ownership approach

In order to define a pillaging of natural resources as a war crime, there should be established

the rightful owner of the resources, consequently, established the ownership of the property.

Due to the case law, the pillage of natural resources has defined ownership approach by

taking into account the domestic law governing mineral rights within the country at war. It

considerably depends on jurisdiction of each country. According to James G. Stewart, there are three

models of natural resources ownership which are the most popular.

1) The first one known as the claims system, confers ownership of minerals on anyone who

discovers the deposit, subject only to certain formalities. According to this model of

ownership, undiscovered minerals belong either to the state or to no one and become the

property of whoever asserts first title.

2) The second one, known as accession system stipulates that natural resources such as

timber or copper belong to the owner of the land where the resources are found. (e.x.

there are exceptions in some countries for specific minerals such as oil, gas, and coal

which are the state property in any case).

3) The third and the most popular model of resource ownership is known as the concession

system, which typically vests ownership of natural resources in the state, and gives a

particular state authority to grant rights to search for, extract, process, and sell these

resources.102

It should to be mentioned, that Ukraine does have the concession agreement model,

according to it Constitution, Article 13 in particular, means that the state owns all natural resources

within its territory, however, due to the Law of Ukraine № 93/96-VR "On foreign investments" and

Law of Ukraine № 997-XIV "On concessions" these resources could be allocated to a private party

through a procedure of concession.

b) A Rebel Group’s Ownership of Resources under Its Control

In Ukraine, as well as in other situations like in the Democratic Republic of the Congo,

Burma, and Cote d’Ivoire, the rebels took over large portions of territory, then they established their

own parallel administration, with their own minister of mines, creating a separate body charged

with granting mining concessions and issuing formal decrees cancelling earlier mining rights. Thus,

from the one side, concessions issued by formal state authorities (as in case of Ukraine) become

irrelevant formalities in rebel-held territory where Ukrainian national law is ignored. From the other

side, decrees issued by rebel movements to grant rights in natural resources contravene

constitutional principles of Ukraine and the other terms of the national legislation. Therefore, such

two conflicting systems of resources controlling create an inescapable tension in the war country.

Noteworthy, certain national jurisdictions have accepted that such acts by rebel groups might

be lawful to the extent that the group effectively controls the territory103, however, a considerable

99See., Texty, “У супермаркетах Києва масово продають товари з ДНР, ЛНР та Криму”, 18Apr2015,

http://texty.org.ua/pg/news/Сонячна/read/59567/U_supermarketah_Kyjeva_masovo_prodajut_tovary_z. 102 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.40. 103 See, American cases after the Bolshevik revolution in Russia: Sokoloff v. National City Bank of New York (1924), 239 NY

158; Russian Reinsurance Co. v. Stoddard (1925), 240 NY 149; Salimoff v. Standard Oil (1933), 262 NY 220. Similarly, with

case law of more recent jurisprudence insists that "ineffective" national law (in particular case –

Ukrainian law) remains applicable in rebel held territories.

For instance, one of them was the European Court of Human Rights (ECHR) who has

confirmed this point of view in a case involving the seizure of private property from an entity that

was not recognized as a state by the international community. In Loizidou v. Turkey case, the Court

ruled that the claimants’ right to property was violated by expropriations premised on legislation

enacted by an unrecognized government, namely the Turkish Republic of Northern Cyprus (TRNC).

The TRNC (with the internationally recognized "rebel" status) had seized control of the property in

Northern Cyprus following the Turkish military intervention in the territory in May 1974. Therefore,

the ECHR declared, that:

"[t]he Court cannot attribute legal validity for purposes of the Convention to such provisions as

Article 159 of the fundamental law on which the Turkish Government rely…. The Court confines itself to the

above conclusion and does not consider it desirable, let alone necessary, in the present context to elaborate a

general theory concerning the lawfulness of legislative and administrative acts of the “TRNC”. It notes,

however, that international law recognizes the legitimacy of certain legal arrangements and transactions in

such a situation, for instance, as regards the registration of births, deaths and marriages…"104

As was said, some of the domestic jurisdictions adopt a different interpretation on this issue

in their own private international law, however, the fact is that international criminal courts and

tribunals will follow precedents derived from public not private international law, thereby

confirming the reasoning in the White v. Texas, Namibia, and Loizidou cases. Thus, it is extremely

questionable whether these limited exceptions remain valid in light of the more recent international

practices.

Some would say that the recognition of rebel groups by some states can also play role in

justification of pillaging, however, it plays very little role (except the situation where such kind of

rebel groups would have a plausible claim of recognition from national government in the country

where they operate) in determining ownership of natural resources, because the UN Security

Council has passed resolutions that prevent states from recognizing a particular fraction as a

government.105

Conclusion

respect to the Spanish Civil War, see the British judgment Banco de Bilbao v. Rey, [1938] 2 All.E.R. 253. See too, Hesperides

Hotels v. Aegean Turkish Holidays, (1977) 3 W.L.R. 656 (Eng. C.A.). 104 See., Loizidou v. Turkey, App. No. 15318/89, 23 Eur. Ct. H.R. 513, para. 44–45 (1996). The European Court of Human

Rights has itself upheld this reasoning on a number of occasions. See Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 IV),

Demades v. Turkey (no. 16219/90, §46, 31 July 2003), Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (no.

16163/90, §31, 31 July 2003), and Xenides-Arestis v. Turkey (No. 46347/99, ECHR 2005, December 22, 2005), See also., Texas

v. White 74 U.S. 733, 733 (1868), p. 736, See also., Legal Consequences for States of the Continued Presence of South Africa

in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion of 21 June 1971, I.C.J.

Reports, para. 125 (1971) [hereafter Namibia Opinion]. The UN Security Council passed a resolution endorsing the

decision, which also declared that “franchises, rights, titles or contracts relating to Namibia granted to individuals or

companies by South Africa after the adoption of General Assembly resolution 2145 (XXI) are not subject to protection or

espousal by their States against claims of a future lawful Government of Namibia,” SC/Res/301, October 20, 1971, para. 12.

UN Council for Namibia, Decree No. 1 for the Protection of the Natural Resources of Namibia, (September 27, 1974) (stating

that “[a]ny permission, concession or licence for all or any of the purposes specified in paragraph 1 above whensoever

granted by any person or entity, including any body purporting to act under the authority of the Government of the

Republic of South Africa or the "Administration of South West Africa" or their predecessors, is null, void and of no force

or effect.”). 105 In the case of the Turkish Republic of Northern Cyprus, for instance, Security Council Resolution 541 (1983) called upon

all states “not to recognise any Cypriot State other than the Republic of Cyprus ...”, See., Security Councli, Ressolution No.

541, November 18, 1983, para. 7.

To make a brief overview, the statistic from the National Institute for Strategic Studies in

Ukraine tell us, that self-proclaimed organizations "DPR" and "LPR" control about a third of the

Donetsk and Lugansk regions in Ukraine. On this relatively small occupied area was extracted

almost half of all Ukrainian coal, decline in production in the mining industry of which was felt ерic

including almost 100% of all anthracite coal which is more efficient for practical usage. From 90

mines, which were under the control of Ministry of Energy and Coal Industry of Ukraine, only 35

today are on the territory controlled by Ukrainian government, while the other 55 (including all

mines, which produce anthracite coal group) are under the control of self-proclaimed "DPR" and

"LPR" organizations. Generally, due to Ukrainian energy authority (Minenergovygillya), there are

85 mines on the uncontrolled territory of Donetsk and Lugansk regions of various forms of

ownership that is 57% of the total mines in Ukraine. Sixty of them extract steam coal, including

almost 100% of anthracite coal.106 In addition, frequent production chains gaps as well, as shortage

of raw materials, especially adversely affected the of metallurgical production in Ukraine (the fall in

output in the mining industry is, in about - 20.3%). Consequently, production of coke and coke

products (reduced in - 29.7%), electricity, gas and water (reduced in - 13.7%), the volume of

production in engineering dropped by 19.3%, and chemical industry - by 19.4%.107

Thus, due to the international criminal law and humanitarian law practice - illegal armed

groups have no rights to state-owned or in any way privately held mineral wealth, and which is

most important - rendering corporate trade with these “rebel” groups equivalent to receiving stolen

property.

8) Authorization for resource extraction

When the state owns the resources, it frequently consents to the exploitation and trade of

these resources by passing legislation that defines procedures for obtaining the right to exploit

resources and by empowering a state body to allocate these resources. When private entities own

resources, a commercial contract most frequently provides consent. As was mentioned before,

pillaging is an essentially appropriation of property without consent. As a result, the companies

operating in a conflict zones often ignore the need for state consent entirely by relying on

authorizations granted by rebel groups or foreign military forces.

To have a sense of it, the Nazi Hans Kehrl was convicted of pillage for having exploited large

quantities of iron, crude steel, and coal from the Vitkovice Works in then Czechoslovakia, by derive

authority from a decree issued by a warring party to the hostilities.108 The illegitimacy of these sorts

of decrees had serious legal ramifications - Kehrl himself was convicted for pillaging steel and coal

from the mines.109

Therefore, the concessions issued by rebel groups or foreign military in modern war zones

will not protect companies against liability for pillage, because these concessions have neither a

greater claim to legal justification in international law, nor go further in obtaining adequate consent

in accordance with applicable state legislation.

Additionally, the purchasers of illicitly-seized conflict resources also appropriate property

without the owner’s consent. In the Roechling case, the German businessman Hermann Roechling

was found guilty of pillage for purchasing scrap steel from the German company ROGES, knowing

that the merchandise had been illegally seized without the consent of the owners. The company

106 See, The National Institute for Strategic Studies, “"Вугільна промисловість України в умовах гібридної війни".

Аналітична записка”, http://www.niss.gov.ua/articles/1890/. 107 See., New Ukraine, Institute for Strategic Studies “Економічна ситуація на окупованих територіях Донбасу”,

http://newukraineinstitute.org/new/583. 108 See., Ministries Case, pp. 758, 763. (In finding Kehrl guilty of pillage, the tribunal concluded that “through his active

participation in the acquisition and control of the industries and enterprises hereinbefore specifically referred to, [Kehrl]

violated the Hague Convention with respect to belligerent occupancy.”) 109 Ibid., p. 758.

ROGES was a mere front established for the German Army High Command and other Nazi

authorities, tasked with acquiring property from German military and economic agencies then

selling the property to German industry.110 As previously seen, the tribunal established in the French

zone of occupation in Germany convicted Roechling of pillage for purchasing from ROGES,

declaring that “Hermann Roechling, like all other German industrialists in the same circumstances,

was a receiver of looted property.”111

Noteworthy, coercion can also vitiate consent in natural resource exploitation during war,

which also gives rise to criminal liability for pillage. As the IG Farben case famously stated, “[w]hen

action by the owner is not voluntary because his consent is obtained by threats, intimidation,

pressure, or by exploiting the position and power of the military occupant under circumstances

indicating that the owner is being induced to part with his property against his will, it is clearly a

violation of Hague Regulations.”112

In Ukraine, to be authorized for natural resource extraction the state should give it consent

for the exploitation and trade of these resources as well, by passing legislation (i.e. Cabinet of

Ministers of Ukraine Resolution “On approval of special permits for subsoil use” No. 615 and

“Procedure for conducting auctions of special permits for subsoil use” No. 594) that defines

procedures for obtaining the right to exploit all kind of natural resources which are of a national

importance (i.e. oil, coal, gold, diamonds, gas, etc). However, you don’t need a permit for extraction

of natural resources which are not of a national importance (f.x. natural surface water, clay, etc.).

Indeed, for now, there are few companies which allegedly can make a physical exploitation

of natural resources in the occupied territory of Ukraine. One of them are the enterprises of DTEK

which can allegedly produce 500 thousand tons of anthracite coal per month and some state mines

which are working there somehow by supplying coal to the Ukrainian government territory.113

Besides, there are other companies which do have an authorization from Ukrainian Government to

buy natural resources from the occupied territory of Ukraine as a matter of exceptions which are

related with a bad economic environment in the country. It was assumed that the coal from the

occupied territory under the control of “DPR” and “LPR” could allegedly purchase at least two state

enterprises "Luganskcugillya" in Luhansk region and "Donetska Vuhilna Energetychna Kompaniya"

("DTEK") in the Donetsk region.114 And, some other companies who were re-registered from the

occupied areas on the territories under the control of Ukrainian government, by given the gravity of

the fact that all contracts for the purchase of coal originating from the occupied areas agreed with

Ukrainian energy authority (Minenergovygillya) and information about them is provided to the

SSU.115

Conclusion

110 See Krupp Case, pp. 1361–1362. 111 See, Roechling Case, p. 1118. 112 See, IG Farben Case, pp. 1135–1136. 113 See., Golos ua, “Демчишин: Україна стабільно отримує антрацитове вугілля з території, підконтрольної ДНР”,

20Apr2015, said former Minister of Energy and Coal Industry of Ukraine Volodymyr Demchyshyn,

http://ua.golos.ua:8081/ekonomika/demchishin_ukraina_stabilno_poluchaet_antratsitovyiy_ugol_s_territorii_podkontrol

noy. 114 See, Galinfo, “Державна компанія «Центренерго» купуватиме до 100 тис тонн вугілля на місяць у шахтоуправлінь,

що знаходяться на контрольованій терористами території Донбасу, пише Сергій Головньов у «Інсайдері».”,

16Jan2015, http://galinfo.com.ua/news/ukraina_pogodylas_kupuvaty_vugillya_u_terorystiv_dnr_i_lnr_182200.html., See,

also, LB.ua, “В Минэнерго отчитались о поставках угля из ДНР и ЛНР”, 05Jan2015,

http://economics.lb.ua/state/2015/01/05/291322_minenergo_otchitalis_postavkah.html. 115 See, The National Institute for Strategic Studies, “"Вугільна промисловість України в умовах гібридної війни".

Аналітична записка”, http://www.niss.gov.ua/articles/1890/. See, also, Newsru.ua, “Трипільська ТЕС забезпечується

вугіллям із зони АТО - "Центренерго"”, 14May2015, http://newsru.ua/finance/14may2015/tripolye.html.

Therefore, despite the fact that it could even be a state authority or state enterprise, it should

not be forgotten the principle which state, that rendering corporate trade or any other operation with

the rebel groups directly or indirectly equivalent to receiving a stolen property and equal to

culpability of war crime as pillage for purchasing.

9) The subjective element of the Pillage

As a general rule, however, at least two graduated degrees of intention—direct and indirect

intent are possible. As the Martic´ Trial Judgment ruled, “with respect to the mens rea of this crime,

the unlawful appropriation of the property must have been perpetrated with either direct or indirect

intent.”116 In the context of pillage, direct intent refers to a situation where an accused acquires

natural resources with the purpose of unlawfully depriving the owner of the property, whereas

indirect intent implies a lower degree of intent approximately equivalent to recklessness in certain

common law jurisdictions and dolus eventualis in civil law systems.

a) Direct Intent:

The “direct” intention to perpetrate pillage requires that a business representative

purposefully acquires natural resources knowing that the owner does own it without consent.

Hermann Roechling’s conviction for the pillage of iron or from mines in eastern France typifies this

standard.117 Clearly, Reochling’s purpose was to acquire natural resources while knowing that the

property he acquired was obtained without the true owner’s approval. In the words of the tribunal

itself, “[t]he act committed by him constitutes, especially in this case, a robbery.”118 The corporate

appropriation of natural resources based on the authority of a foreign government or domestic rebel

factions will frequently satisfy this same standard.

b) Oblique intent:

The oblique intent meant, when the perpetrator does not want to acquire property

unlawfully but is understandable that this is a virtually certain consequence under the prevailing

circumstances.119 A good example will be the Krupp Case, where the Court stated, that “the Krupp

firm knew the source of these goods purchased from ROGES and that certain of these items such as

machines and materials were confiscated in the occupied territories and were so-called booty

goods.” Six representatives of the firm were convicted of pillaging the booty goods as a

consequence.120

The same principles will apply to companies operating in modern conflicts, where

correspondence from military groups selling natural resources, transportation records, the origins

116 See., Martic´ Trial Judgment, para. 104; see also Hadžihasanovic´ Trial Judgment, para. 50 ( “the mens reaelement of the

offence of plunder of public or private property is established when the perpetrator of the offence acts with the knowledge

and intent to acquire property unlawfully, or when the consequences of his actions are foreseeable.”) 117 See, Roechling Case, pp. 1110–1111. 118 See, Roechling Case, p. 1113. 119 In the United Kingdom for example, courts have found that “[a] court or jury may also find that a result is intended,

though it is not the actor’s purpose to cause it, when (a) the result is a virtually certain consequence of the act, and (b) the

actor knows that it is a virtually certain consequence.” Smith and Hogan, p. 94. These standards appear to approximate to

what German criminal law considered dolus directus (2nd degree). See Albin Eser, “Mental Elements: Mistake of Fact and

Mistake of Law,” The Rome Statute of The International Criminal Court: A Commentary, 889, 906 (Antonio Cassese et al.

eds., Oxford University Press 2002). 120 See, Krupp Case, pp. 1361–1363.

of certain types of resources and other relevant evidence also render the illicit origins of the

commodities virtually certain.121

c) Indirect Intent:

The Martic´ Trial Judgment and other international jurisprudence have clearly found that

pillage may be perpetrated “with either direct or indirect intent.”122 However, the ad hoc international

criminal tribunals, for instance, have consistently affirmed that pillage can be perpetrated with only

indirect intent. As previously mentioned, indirect intent involves taking impermissibly high risks,

which national legal systems describe as recklessness or dolus eventualis. A number of common law

jurisdictions adopt a rule that, in the absence of specific language defining the mens rea requirement

for a crime (as is the case with pillage), intent should be interpreted as at least implying recklessness

which means “consciously disregarding a substantial and unjustifiable risk that the material element

exists or will result”.123 In continental European jurisdictions, case-law extends the concept of dolus

eventualis to all offenses, which would logically extend to pillage and means that that perpetrator

perceive the occurrence of the criminal result as possible, and that he or she at least makes peace

with this possibility.124 And the other national jurisdictions may insist that only direct intent

suffices.125 Conveniently, the U.S. Model Penal Code, for instance, stipulates that theft is perpetrated

when a person “purposely receives, retains, or disposes of moveable property of another knowing

121 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.69. 122 See., Martic´ Trial Judgment, para. 104. Although the terminology seems slightly different to established tests for indirect

intent, see also Hadžihasanovic´ Trial Judgment, para. 50. (The Hadžihasanovic´ Trial Judgment articulated this standard

in slightly different terms by stating that “the mens rea element of the offence of plunder of public or private property is

established when the perpetrator of the offence acts with the knowledge and intent to acquire property unlawfully, or

when the consequences of his actions are foreseeable.”) 123 In Australia, the Criminal Code Act states that “[i]f the law creating the offence does not specify a fault element for a

physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.”

Criminal Code Act 1995, Act No. 12 of 1995 as amended. In the United Kingdom, cl. 20 of the draft Criminal Code states

that “[e]very offence requires a fault element of recklessness with respect to each of its elements other than fault elements,

unless otherwise provided.” In the United States, the Model Penal Code insists that “when the culpability sufficient to

establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely,

knowingly or recklessly with respect thereto.” See Model Penal Code, supra note 99, §2.02(3). See., also, U.S. Model Penal

Code, §2.02(c). See also R v. G and another [2004] 1 A.C. 1034, 1057 (stating that “[A] person acts recklessly within the

meaning of section 1 of the Criminal Damage Act 1971 with respect to-(i) a circumstance when he is aware of a risk that it

exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him,

unreasonable to take the risk…”) (United Kingdom). See also R v. Crabbe (1985) 58 ALR 417, 470 (“A person who does an

act causing death knowing that it is probable that the act will cause death or grievous bodily harm is…guilty of murder”)

(Australia). 124 See., Jacques-Henri Robert, Droit pénal général, 325 (6e éd. refondue. ed. 2005) (describing dol eventuel); Elise van

Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, 43–53 (2003)

(explaining dolus eventualis in civil law jurisdictions and comparing to recklessness); Michael Bohlander, Principles of

German Criminal Law, 63–67 (2008) (explainin dolus eventualis in German criminal law). See also Commentario Breve al

Codice Penale, 103 (Cedam,1986) (discussing dolus eventualis in Italian criminal law). See., also, BGHSt 36, 1–20 [9–10]

(“the perpetrator is acting intentionally if he recognizes as possible and not entirely unlikely the fulfilment of the elements

of an offence and agrees to it in such a way that he approves the fulfilment of the elements of the offence or at least

reconciles himself with it in order to reach the intended result, even if he does not wish for the fulfilment of the elements

of the crime”) (Germany). See also Commentario Breve al Codice Penale, Cedam, Padua (1986), p. 103 (“the occurrence of

the fact constituting a crime, even though it is not desired by the perpetrator, is foreseen and accepted as a possible

consequence of his own conduct.”) (Italy). 125 A number of jurisdictions will not view recklessness as a component of intention. Moreover, if the ICC cannot prosecute

pillage perpetrated with indirect intent, this may influence national courts. For example, in the United Kingdom’s

legislation implementing the ICC Statute, a provision insists that “[i]n interpreting and applying the provisions of the

articles referred to in subsection (1) [war crimes] the court shall take into account any relevant judgment or decision of the

ICC.” U.K. International Criminal Court Act 2001, §50(5).

that it has been stolen, or believing that it has probably been stolen…”.126 Thus, on such a case, the

key element here, is the phrase “probably stolen” which by simple reference describing an indirect

intent, while conscious that the actual legal test will vary from jurisdiction to jurisdiction.

It is considerably relevant, that a lot of evidence can be used to indicate that a company

acquired natural resources from a war conflict with a key phrase "knowing that they were probably

stolen", again, a good example of a primary factor in establishing knowledge that property is stolen

or constitute a war crime as pillage for purchasing within internal legal systems will be a payment

of a price which for sure would be well below market rates.

It also should to be mentioned, that the doctrine of usufruct in the laws of war allows an

occupying army or rebel group to exploit state-owned immoveable natural resources without the

owner’s consent, provided that the proceeds of the transaction are used to meet the humanitarian

needs of the local population. This statement slightly modifies the means of proving the structural

elements for pillage. In order to avoid confusion about how usufruct intersects with intention, there

is a difference. Usufruct acts as an exception to the need for consent, establishing intent in this

scenario requires proof of an awareness that the exploitation in question did not comply with the

law of usufruct.127

10) The Criminal Responsibility

a) Individual Criminal Responsibility

It worth to start with, that the most common mean of prosecuting corporate criminality

involves prosecuting a company in an individual capacity for crimes perpetrated during the course

of business. The IG Farben Judgment stipulated that “responsibility does not automatically attach to

an act proved to be criminal merely by virtue of a defendant’s membership in the Vorstand [Board].

Conversely, one may not utilize the corporate structure to achieve an immunity from criminal

responsibility for illegal acts which he directs, counsels, aids, orders, or abets.”128 There is a general

rule, that prosecuting corporate criminality involves catching the representatives of corporations in

an individual capacity. In 1701, for instance, a British court dismissed the corporate structure as

irrelevant in criminal trials of business representatives, declaring that “a corporation is not

indictable, but its individual members are.”129 In also means, that civilians can be prosecuted for

violations of the international laws applicable during war as of corporate representatives which are

individual liable for war crimes such as pillage.

The Geneva Conventions of 1949 and Additional Protocol II signed several decades

contributed to the notion that the laws of war bind civilians by creating norms that bind rebel

groups, even though these groups almost never negotiate or endorse the relevant treaties, which

means that acts constituting war crimes may be committed by combatants, noncombatants, or

civilians.130 As one modern international criminal tribunal has found, “the laws of war must apply

equally to civilians as to combatants in the conventional sense.”131 In a WW2 case, for instance,

126 Model Penal Code, §223.6 127 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.35-37. 128 See, IG Farben Case, p. 1153. 129 88 Eng Rep 1518 (KB 1701). 130 U.S. Navy, The Commander’s Handbook On the Law Of Naval Operations, NWP 1–14M, §6.2.6 (July 2007); see also

U.S. Field Manual, §499 (“The term ‘war crime’ is the technical expression for a violation of the law of war by any person

or persons, military or civilian.”); New Zealand MilitaryManual, §1701(1)] (“The term ‘war crime’ is the generic expression

for large and small violations o the laws of warfare, whether committed by members of the armed forces or by civilians.”)

Officeof the Judge Advocate General (Canada), The Law of Armed Conflict at the Operational and Tactical Level, §48; UK

Military Manual, §16.30.1. 131 See, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 634 (September 2, 1998). On appeal, the Appeals

Chamber ruled that “there is no explicit provision in the Statute that individual criminal responsibility is restricted to a

members of a German family were convicted of pillage for retaining illegally-acquired property

from a deported civilian’s farm.132 In commenting on the this trial, the UN War Crimes Commission

described the verdict as “confirmation of the principle that laws and customs of war are applicable

not only to military personnel, combatants acting as members of occupying authorities, or, generally

speaking, to organs of the State and other public authorities, but also to any civilian who violates

these laws and customs.133

A good example will be the Dutch courts case, where a Dutch businessman named Frans Van

Anraat was convicted of inhuman treatment as a war crime for commercial transactions that

involved the sale of chemicals ultimately subjected upon Iraqi Kurds. The court held Van Anraat

personally responsible for transactions performed through intermediary firms in which he was a

leading figure. These subsidiaries supplied a total of 1,400 metric tons of a vital chemical precursor

to the government of the Republic of Iraq knowing that the chemicals would be used as mustard gas

during the ongoing hostilities against Iran. In sentencing Van Anraat to 17 years imprisonment for

his complicity in the war crimes that ensued, the appellate court cautioned that “[p]eople or

companies that conduct (international) trade, for example in weapons or raw materials used for their

production, should be warned that, if they do not exercise increased vigilance - they can become

involved in most serious criminal offences.”134 As a result, perpetrating, aiding, and abetting or

instigating pillage of natural resources renders by individual business representatives constitute

guilty of a war crime.

b) Corporate Criminal Responsibility

Generally, there is a rule that corporate bodies should be responsible in the same way for

their actions as individuals. A large number of domestic criminal courts have jurisdiction over war

crimes perpetrated by companies, however, customary international law does not.135 In recent

months, a United States Court of Appeal rendered an opinion concluding that companies could not

particular class of individuals.” Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Appeal Judgment, para. 436 (June 1, 2001)

[hereafter Akayesu Appeal Judgment]. 132 See., Bommer Case, p. 62. The case is similar to that of Karl Lingenfelder, a German from Mussbach, who came to France

as a settler in the first days of occupation and took possession of a farm whose owners had been expelled by the German

authorities. He was convicted of pillage for removing four horses and two vehicles from the farm. Trial of Karl

Lingenfelder, Permanent Military Tribunal at Metz, 9 Law Reports of Trials of War Criminals, at 67 (March 11, 1947). 133 See., Bommer Case, pp. 65–66. 134 See., Prosecutor v. Van Anraat, Netherlands, LJN: BA6734, Gerechtshof’s-Gravenhage, 2200050906-2, (May 9, 2007)

[hereafter Van Anraat]; Prosecutor v. Kouwenhoven, Netherlands, LJN: AY5160, Rechtbank’s-Gravenhage, 09/750001-05

(July 28, 2006), para. 11.5. 135 See., Cristina Chiomenti, “Corporations and the International Criminal Court,” Transnational Corporations and Human

Rights, 287 (Olivier De Schutter ed., 2006); Andrew Clapham, “The Question of Jurisdiction under International Criminal

Law over Legal Persons: Lessons from the Rome Conference on a International Criminal Court,” in Liability of

Multinational Corporations Under International Law, 139 (Menno T. Kamminga and Saman Zia-Zarifi eds., 2000). See.,

Also, Corporations will also be responsible for the war crime of pillage in Canada through an alternative legal route.

Section 34(2) of the Interpretative Act stipulates that “[a]ll the provisions of the Criminal Code relating to indictable

offences apply to indictable offences created by an enactment.” Because Article 2 of the Canadian Criminal Code defines

the term “every one” as including organizations, all offenses created by the Crimes against Humanity and War Crimes

Act, 2000 c. 24 (Can.) can be charged against companies. See., Also, Section 51(2)(b) of the U.K. International Criminal

Court Act 2001 confers British courts with jurisdiction over acts of pillage orchestrated “outside the United Kingdom by a

United Kingdom national, a United Kingdom resident or a person subject to U.K. service jurisdiction.” Article 67(2) states

that “[i]n this Part a ‘United Kingdom resident’ means a person who is resident in the United Kingdom.” Finally, section

5 of the Interpretations Act 1978 states that “[i]n any Act, unless the contrary intention appears, words and expressions

listed in Schedule 1 to this Act are to be construed according to that Schedule.” The Schedule states that “’[p]erson’ includes

a body of persons corporate or unincorporate.”, See., Also., The War Crimes Act 18 U.S.C. §2441(1996) stipulates that

“whoever” commits a war crime is subject to criminal punishment including fine, imprisonment and death. The Dictionary

Act of 2000 states that “[i]n determining the meaning of any Act of Congress… the words ‘person’ and ‘whoever’ include

corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

Dictionary Act, 1 U.S.C. §1 (2000).

be sued pursuant to the American Alien Tort Statute for “violations of the laws of nations,” on the

grounds that “the concept of corporate liability for violations of customary international law has not

achieved universal recognition or acceptance as a norm in the relations of States with each other.”136

So, prosecutors, judges, and other officials are therefore entitled to interrogate their own national

legislation in assessing the viability of prosecuting companies for pillage.

Generally, Courts adopt different standards for determining when a corporation is guilty of

a criminal offense, each of which relies on a three-different theory of blame attribution:137

1) The first holds companies vicariously liable for criminal offenses perpetrated by

company employees “within the scope of his employment and with intent to benefit the

corporation.” It's mean that at least one of their employees is implicated in the pillage of

conflict commodities.

2) Other theory has more restrictive model of corporate criminal responsibility where only

senior member of the company’s management is responsible for the offense.138 Thus, only

crimes perpetrated by senior management make the company criminal liable.

3) And the last one will convict corporate entities that are operating during armed violence

in an act of pillage for their failure to create a corporate policy that prevents the offense.139

As a result, the corporation can be criminally responsible independently of the criminal

liability of its employees if the corporation can be said to have not taken all reasonable

and necessary organizational measures to prevent such a breach.140

Conclusion

Corporate criminal liability and the individual criminal liability of business representatives

should function together. The experts agreed that “a dual focus on the firm and the individual is

necessary. Neither can be safely ignored.”141 Therefore, the dual use of corporate and individual

criminal liability will allow prosecutors to tailor their case to the circumstances and, as the

subsequent section shows, expands the number of jurisdictions capable of trying the offense.

It worth to note on this, that the most common mean of prosecuting corporate criminality

involves prosecuting a company in an individual capacity for crimes perpetrated during the course

of business. In particular, in Ukraine, the criminal liability for such crimes defined in Chapter XX of

Criminal Code of Ukraine, where Article 438 state, that “pillaging of national property in occupied

territory” is a violation of the laws and customs of war which are punishable by a way of

imprisonment from 8 years till life sentence. Besides, in Ukraine prosecuting corporate criminality

involves prosecuting a company in a corporate criminal capacity for crimes perpetrated during the

course of business if the individual involved was acting by it indirect intention and on the other

hand by prosecuting a company worker in an individual capacity for crimes perpetrated during the

course of company’s business if the individual worker involved was acting by it direct intention.

Finally, this seems as so much true in the context of liability for pillaging of natural resources.

On the one hand, a range of factors militate in favor of prosecuting corporations - corporations are

better placed than state authorities to detect, prevent and especially sanction them on the illegal

exploitation of natural resources undertaken by their employees in foreign conflict zones. However,

they are often too large to locate a specific representative who appropriated resources with the

culpable mental element, and corporations in general are more able to pay reparations to victims

136 See., Kiobel v. Royal Dutch Petroleum, No. 06-4800-cv, 06-4876-cv, 2010 WL 3611392 (2d Cir. September 17, 2010), p. 49. 137 See., James G. Stewart, "Corporate War Crimes. Prosecuting the Pillage of Natural Resources", Open Society Kustice

Initiative Publication, 2011, p.81-82. 138 See., Tesco Supermarkets v. Nattrass [1972] AC 153. 139 See., Section 12.3(2)(d) Commonwealth Criminal Code Act of 1995, Australia. 140 See., Article 102(2), Code Pénal Suisse. 141 See., J. Coffee, “No Soul to Damn, No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate

Punishment, 79 Mich. L. Rev. 386 (1980–1981), p. 410.

upon conviction.142 On the other, prosecuting individual business representatives is also vital in

certain circumstances. For instance, smaller firms involved in trafficking conflict commodities are

frequently dissolved after each illicit transaction as a means of subterfuge, leaving individual

criminal responsibility as the only feasible means of redress. Noteworthy, there are thoughts that

only individual criminal liability is likely to create a disincentive that transcends the pressures of

corporate culture, which seems particularly important within the extractive industry.143

11) Conclusion:

Based on the information available, there is a reasonable basis to believe that the alleged acts

of violence committed by the legal entities and/or their affiliated individuals since the conflict begun

constituted an “pillaging” pursuant to the Rome Statute and Ukrainian state policy. Accordingly,

there is reasonable basis to believe that the crimes allegedly committed by such legal entites and/or

their affiliated individuals in the context of “pillaging” amount to the war crimes under article 8 of

the Rome Statute. Therefore, the alleged crimes committed in the context of “pillaging” do fall within

the subject-matter jurisdiction of the ICC. However, it is noted that this conclusion may be expanded

in light of new facts or evidence. Besides, the fact, that these acts do fall within the ICC jurisdiction,

they additionally may amount to serious violations under international human rights law and

Ukrainian crimianl law as well.

Thus, there is presently a basis for considering that Ukrainian nationals and not only them,

are responsible for a war crimes allegedly committed by various legal entities and their affiliated

individuals. The information available also seem to indicate that acts allegedly committed by

abovementioned legal entities and their affiliated individuals in the context of the on-going non/or-

international armed conflicts in Ukraine appear to amount to a war crimes falling within the

jurisdiction of the Court, including: pilagging a town or place, even when taken by assault under

article 8(2)(b)(xvi) and pilagging a town or place, even when taken by assault under article 8(2)(e)(v)

of the Rome Statute.

So, I believe that pursuant to the common aspirations of peace, security and justice, it is

imperative to conduct full and thorough investigations into these events and bring those responsible

for international crimes to justice before an independent and impartial tribunal guaranteeing the full

respect for fundamental fair trial rights

142 See, Celia Wells, Corporations and Criminal Responsibility (Oxford University Press, 2001). 143 See, Bernd Schünemann, “The Sarbanes-Oxley Act of 2002: A German Perspective,” Buffalo Criminal Law Review 8

(2004): 35–50., (highlighting, in fact, how the use of corporate criminal liability alone “leads to a weakening of the deterrent

effect of an individual level”);