Introduction
Since the outbreak of the Syrian conflict in 2011, cluster munitions have been used frequently in the ongoing conflict by both state and non-state actors. This type of munition is defined in the Convention on Cluster Munitions (CCM) as “conventional munition that is designed to disperse or release explosive sub-munitions each weighing less than 20 kilograms and including those explosive sub-munitions.” According to a report published in August 2019 by the Cluster Munitions Coalition (CMC), 674 attacks with cluster munitions were reported in Syria in the period between mid-2012 to July 2019. The majority of these attacks were carried out by the Syrian Armed Forces (SAF) and Russian forces within what is called the Syrian-Russian Joint Operation. Moreover, Human Rights Watch reported that the Islamic State in Iraq and Syria (ISIS) was responsible for three attacks using cluster munitions against the Kurdish forces (YPG) in Ayn AL Arab/Kobani on 12 July and 12 and 14 August 2014. There were 3,348 casualties in total, most of them civilians, among which were women and children.
The Syrian stockpile of cluster munitions is made up of mainly Soviet and Russian-made bombs and a smaller quantity of Egyptian surface-to-surface rockets, likely obtained in a prior conflict period. Furthermore, the Russian stockpile of cluster munitions used in the joint Syrian-Russian air campaign includes modern cluster bombs such as OFAB 250-270s and RBK-500s. The modern Russian munitions were recorded in footage and photos broadcast by the Russian media, which demonstrated Russian bombers in the Hmeyim airbase being loaded with cluster munitions. In parallel, several aerial attacks by the Russian and Syrian jets on areas held by the Syrian opposition were reported by different NGOs. In these attacks, various munitions, including Thermobaric, Phosphorus, and cluster munitions, were employed.
One of the deployed cluster munitions is the SPBE-D model. It is possibly the first instance of its use in real battle conditions. This model is a new generation of Russian cluster munitions, which was tested, among other new Russian weapons, in Syria, according to a statement of former Russian airborne troop commander Vladimir Shamanov. He declared that the Syrian conflict has been used as a testing ground for newly manufactured Russian arms: about 320 new weapons were tested in Syria. Also, Russian military expert Mikhail Barabanov stated: “new types of weapons — such as satellite-guided bombs, cluster munitions with smart elements, and cruise missiles — have been tested.” Recently, Russian Minister of Defence Sergei Shoigu confirmed that these different weapons were being tested in Syria by stating: “we need to develop such arms. If you have it ready for testing, let's test it at the Kavkaz-2020 strategic command and staff exercises. And if he proves himself positively, the equipment will be tested at exercises in Syria before being put into service.”
This blogpost discusses whether Russian company NPO Basalt (Russian: НПО Базальт) participated in violations of international humanitarian law (IHL) by providing cluster munitions to be tested in the Syrian conflict. It also analyzes the responsibility of NPO Basalt’s executives under the rules of the Rome Statute as an aider and abettor to the aforementioned violations.
State of the art
The SPBE-D model marks the introduction of a new generation of cluster munitions, capable of targeting multiple armored vehicles simultaneously. The model employs a dual-mode infrared (IR) seeker or radiofrequency sensor that sweeps the area under the sub-munition to detect targets. The SPBE-D was reportedly used in three different towns held by the Syrian opposition, located in the northwestern part of Syria (Hayan, Kafr Halab, and Haritan: see here and here). The attacks with the SPBE-D were communicated by the Violations Documentation Center (VDC), the Syrian Civil Defense (SCD), and Human Rights Watch (HRW). The latter has issued several reports, discussing the effects of unexploded ordnance (UXO), and how the remnants of the SPBE-D and other cluster munitions may still realize a potential threat to civilians.
Cluster munitions under international law
The first article of the CCM outlines the scope of the prohibition of the use, development, production, acquisition, stockpiling, and retention or transfer (directly or indirectly) of cluster munitions to any party. The states parties to the CCM are required to refrain from assisting, encouraging, or inducing anyone to engage in any activity prohibited under the Convention. Another requirement for states parties is their commitment to destroying stockpiled munitions, clearing contaminated land, assisting victims, providing technical, material, and financial assistance to other States Parties, undertaking transparency measures, enacting national legislation, and promoting universal adherence to the Convention.
Technically, neither the Russian Federation nor the Syrian Arab Republic is a signatory or party to the CCM or the Arms Trade Treaty (ATT). Thus, the flow of certain conventional weapons, including cluster munitions, between them is not monitored according to IHL standards. However, in the absence of specific conventional obligations, as in the Syrian case, we may refer to the rules of customary IHL. The prohibition on the use of cluster munitions is enshrined in a set of rules published in the study of the International Committee of the Red Cross (ICRC) on Customary IHL. The study identifies rules that come from "a general practice accepted as law" and exist independently of treaty law.1
According to this study, cluster munitions are prohibited prima facie because they are: (1) indiscriminate; (2) disproportionate and (3) violate the rule on feasible precautions.
Indiscriminate
The indiscriminate nature of cluster munitions is addressed by Rules 11, 12, and 71 of the ICRC’s study on customary IHL. Rule 11 stipulates that “indiscriminate attacks are prohibited”. Rule 12 stipulates that “indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” Rule 71 prohibits “the use of weapons which are by nature indiscriminate”.
All types of cluster munitions, including the newest models such as the SPBE model, are means of combat of an indiscriminate nature. Analyzing the effect of the attacks on civilian areas in Syria, it becomes clear that the SPBE is not capable of targeting a certain military object, but rather affects the whole civilian area and puts the lives of civilians at risk.
Disproportionate
Rule 14 prohibits “launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. Rule 70 stipulates: “the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited.”
The use of cluster munitions is inherently disproportional, particularly in the context of a non-international armed conflict. This disproportionality becomes clear when the expected civilian harm outweighs the concrete and direct military advantage anticipated. Cluster munitions generally fail the test of proportionality, due to the unavoidable harm they cause to civilians. For instance, the SPBE caused disproportionate harm to civilians and damage to properties in the areas where the attacks occurred.
Civilian damage
According to Rule 15, "in the conduct of military operations, constant care must be taken to spare the civilian population, civilians, and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.”
The rule on feasible precautions requires all parties to take certain measures to minimize the effects of conflict on civilians, either during or after the attack. This rule finds its application through the issue of the explosive remnants of war (ERW), which are classified into unexploded ordnance (UXO) and abandoned explosive ordnance (AXO). Some of the sub-munitions of the SPBE were found undetonated, as shown in the videos and photos shot in the attacked areas. These UXOs are a potential hazard to inhabitants of agricultural areas, and particularly those areas lacking explosive dismantling teams. This demonstrates that the use of SPBE may violate customary IHL rule 15. It is hazardous to the local civilian communities, who may be harmed by the remnants of the SPBE.
By analyzing the aforementioned articles, we find that the adherence to norms of IHL is problematic when considering the Russian deliveries of cluster munitions to the forces operating on Syrian ground. The use of the SPBE-D model (among other new weapons) demonstrates how new military technologies remain a cause of human suffering, and still require a certain level of legal review. The breach of such IHL standards may raise questions regarding secondary liability under the regime of international criminal law.
Testing as aiding and abetting
NPO Basalt is the designer and patent holder of the RBK-500 SPBE cargo munition and the SPBE-D sub-munition. This patent was lodged by NPO Basalt in 2006 and shares identical specifications with the sub-munition found in the attacked areas in Northern Syria. In the same context, a statement was provided by the managing director of NPO Basalt (Vladimir Porhachev), in which he indicated that the designing company was waiting for the last test of a cutting edge bomb containing smarter sub-munitions.
The characterization of the SPBE-D as a ‘never before used design’ gives rise to two questions. First, whether the manufacturing company (NPO Basalt) could be considered an aider and abettor to violations of IHL. Second, whether the company may be held criminally responsible for the act of providing a weapon which is indiscriminate by design, where such provision constitutes an act of aiding and abetting or contributing under article 25(3)(c) or (d) respectively, in conjunction with article 30 Rome Statute.
Both modes of liability mentioned in paragraphs (c) and (d) of article 25(3) Rome Statute provide grounds to hold the executives of Basalt responsible as accomplices to international crimes. Law scholars have explored the differences between both modes of liability seeking the mode of liability that is most applicable to the case of arms supplying.
Article 25(3)(c) Rome Statute
Under paragraph (c), the act of Basalt’s executives could be qualified as a form of aiding and abetting. Application of this paragraph requires the existence of the following elements:
- A crime proscribed under the Rome Statute was committed or attempted;
- The accused aided, abetted, or otherwise assisted in the crime’s commission or attempted commission, including providing the means for its commission; and
- The accused acted for the purpose of facilitating that crime.
First, the actus reus is established through the provision of cluster munitions to both Syrian and Russian forces in order to carry out attacks violating the aforementioned rules of customary IHL. This provision meets the material threshold of the ICC, which does not require that the act of aiding and abetting is substantial to the commission of the crime. This legal requirement was formulated in the Ble Goude and Al Mahdi’s Pre-Trial Chamber decision, which stated: ‘It is nowhere required, contrary to the Defence argument, that the assistance be “substantial” or anyhow qualified other than by the required specific intent to facilitate the commission of the crime.’ In the Bemba et al. Judgment, the Appeals Chamber found that ‘[w]hether a certain conduct amounts to “assistance in the commission of the crime” within the meaning of Article 25(3)(c) of the Statute even without the showing of such an effect can only be determined in light of the facts of each case.’
In Dutch case law, two important examples of Dutch businessmen convicted as aider and abettor to war crimes can be found: for the delivery of large quantities of thiodiglycol (TDG) – an important chemical component of mustard gas– in the Van Anraat case, and the delivery of weapons in the Kouwenhoven case. The Court of Appeal of The Hague adopted a low threshold of causality in the Van Anraat case and “[e]mphasised, in accordance with the Dutch standards on causation, that the assistance need not be indispensable or adequate; merely facilitating suffices.” In the same line, the Court of Appeal of ‘s-Hertogenbosch in the Kouwenhoven case found that “[t]he accused has actively contributed to the acts of war and that the accused has assisted the persons mentioned in the indictment in respect of the acts charged in the indictment.”2
Second, the intent of the executives of Basalt’s to provide this new weapon – or at least a new design- meets the threshold of intent required by articles 25(3)(c) and 30 of the ICC statute.3 The Russian and Syrian air forces intended to use these new cluster munitions to carry out systematic attacks on objects located within civilian areas. This constitutes a war crime. NPO Basalt testing the efficiency of the detection mechanism and the precision of the weapon in a very complex battle situation could amount to their contribution to such war crimes.
The purposive clause stipulated in article 25(3)(c) Rome Statute “[f]or the purpose of facilitating criminal activity” sets a higher threshold than the ‘knowledge’ threshold found in article 30 Rome Statute, and could restrict the application of aiding and abetting as a mode of liability to arms provision. The application of this clause was a point of contention and subject to debate for law scholars and commentators. One opinion explained that ‘the expression “for the purpose of facilitating” was taken from the US Model Penal Code, which accords accomplice liability to a person who acts “with the purpose of promoting or facilitating”.’4
The judgment in the Bemba et al. case gave further explanation to the purposive requirement and clarified ‘that “purpose” as written in Article 25(3)(c) only refers to an accessory’s facilitation of the offense, not the principal offense itself. This implies that no shared intent between the accessory and the primary perpetrator is needed.’
Article 25(3)(d) Rome Statute
Paragraph (d) of article 25(3) provides a different mode of liability: the contribution in any other way to the commission. This mode of liability requires the following elements:
- A crime within the jurisdiction of the Court is attempted or committed;
- The commission or attempted commission of such a crime was carried out by a group of persons acting with a common purpose;
- The individual contributed to the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute;
- The contribution shall be intentional; and
- Shall either a) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime; or b) in the knowledge of the intention of the group to commit the crime.
As the mode of liability in this paragraph was considered as a ‘residual’ form of accessorial liability, the threshold of the actus reus (the contribution) is higher than that required by paragraphs (a)-(c). In practice, the Trial Chamber of Mbarushimana required that the contribution “[m]ust be at least significant”. The mens rea standard is lower than that of (c): it can be met if the contribution was either made with the aim of furthering criminal activity of the group or in the knowledge of the intention of the group to commit the crime. However, the Trial Chamber in Katanga considered that “[k]nowing about the general criminal intent of the group was not deemed sufficient since the accused must be aware of the specific crimes that the group intends to commit and that they will occur in the ordinary course of events”.
Two aspects of paragraph (d) need to be further explored in order to establish the responsibility of the accomplice: the notion of a group of persons acting with a common purpose, and the question of whether the contributor is acting externally or as a member of such group. Judge Van den Wyngaert considered that a group within the meaning of Article 25(3)(d) may simultaneously have criminal and non-criminal purposes.5 In the same vein, the Pre-trial Chamber in Mbarushimana ruled that Article 25(3)(d) applies regardless of whether the person is or is not a member of the group acting with a common purpose.
Thus, both modes of liability described in paragraphs (c) and (d) can be applied to the case of the provision of SPBE cluster munitions, as the elements for both modes of liability can be found in the case.
First, the actus reus requirement appears to have been met since the provision of the cluster munition constitutes a substantial contribution to the war crimes committed by the Russian and Syrian air forces. The provision of this munition is indispensable to carry out airstrikes within civilian areas and to test the efficiency of the cluster bomb.
Second, the mens rea requirement of article 25(3)(d)(ii) ICC Statute is met, as the provision by NPO Basalt was made in the knowledge of the intention of the Russian and Syrian air force to commit the war crime.
Furthermore, the higher mens rea threshold of article 25(3)(c) and (d)(i) is met, as the intent of NPO Basalt executives was not limited to the provision of cluster munitions, but went far beyond it: their intention was to profit from the testing of the technical aspects of such weapons in the ongoing conflict. This gives the mens rea here an additional dimension, thus satisfying the special intent required by article 25(3)(c) and (d)(i).
Practically speaking, the identification of the person deciding on the provision of the munition, and subsequently proving his liability as aider and abettor will be a complex prosecutorial issue, due to the administrative structure of Russian weapon manufacturing companies, and especially considering the hierarchical supervision by Rostec (Russian: Ростех). This point has been discussed extensively in the context of the debate surrounding the lack of an accountability mechanism allowing for the prosecution of a cooperation as a legal entity under the current regime of the ICC.6
Conclusion
The issue of the complicity of providers of cluster munitions to war crimes has previously been raised by different NGOs in the context of the Yemeni conflict, which considered US officials as aiders and abettors to war crimes committed by the Arab coalition forces.
Nonetheless, the Syrian conflict requires a different approach, since holding the provider of the Russian cluster munitions responsible for the international crimes in Syria is not possible before the Russian or Syrian courts. Either because the industry is protected by the Russian state, (see here) as it is considered as strategic public sector, or due to the lack of the capacity of the Syrian courts to hold foreign corporations liable for gross international law violations.
Considering the limits of the option of accountability at the domestic level, the ICC would be a good forum to address the complicity of the providers of Russian cluster munitions, even though this route is likely to be challenged by the Security Council. Taking this route would constitute a departure from precedents of aiding and abetting of the ad hoc tribunals and the ICC, such as the Bemba et al. case, and benefit from national jurisprudence on aiding and abetting war crimes, such as the Van Anraat case. Holding those providing cluster munitions criminally responsible might lead to stronger restrictions on arms exports, such as those imposed by European states and the United States of America on states involved in the Yemeni conflict. The necessity to subject arms dealers and manufacturers not following an effective control of the arms trade to the Rome Statute will play a crucial role in deterring further involvement in international crimes.
1 Henckaerts, J., Doswald-Beck, L., Alvermann, C., Dörmann, K., & Rolle, B. (2005), Customary International Humanitarian Law (Cambridge: Cambridge University Press)
2 Sluiter, G. and Yau, S. (2019), 'Aiding and Abetting and Causation in the Commission of International Crimes – The Cases of Dutch Businessmen Van Anraat and Kouwenhoven', in Jorgensen, N.H.B. (ed.) International Criminal Responsibility of War’s Funders and Profiteers (Cambridge: Cambridge University Press, Forthcoming), Amsterdam Law School Research Paper No. 2019-30, Amsterdam Center for International Law No. 2019-14
3 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; 16 Rome Statute of the International Criminal Court (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
4 Plomp, C. (2014), Aiding and Abetting: The Responsibility of Business Leaders under the Rome Statute of the International Criminal Court. Utrecht Journal of International and European Law, 30(79), 4–29.
5 Aksenova, M. (2016), Complicity in international criminal law. Oxford; Hart Publishing.
6 Ventura, M.J. (2018), 'Aiding and Abetting' in De Hemptinne, J. et al. (eds.), Modes of Liability in International Criminal Law (Cambridge: Cambridge University Press, 2019), pp. 173-256; Plomp, C. (2014). Aiding and Abetting: The Responsibility of Business Leaders under the Rome Statute of the International Criminal Court. Utrecht Journal of International and European Law, 30(79), 4–29.
