How much jet fuel does it take to win a war? There is probably no precise answer to that, but it looks like a Danish bunkering* company has enabled the provision of a pivotal amount of it to the regime in Syria.
So far, the Danish company DanBunkering, a subsidiary, and a CEO have been indicted for selling 172.000 tons of jet fuel to Russian companies (military-controlled) who in turn shipped the fuel to a Syrian harbor, in violation of applicable EU-sanctions.
The company and CEO deny guilt.
The trades took place between 2015-2017 at an estimated value of around $109 million.
The case falls under §110c of the Danish Criminal Code, which says:
Anyone who violates regulations or prohibitions which, according to law, have been given to protect the state’s defense or neutrality measures, is punishable by a fine or imprisonment for up to four months or in particularly aggravating circumstances with imprisonment for up to three years.
Up to three years? For fueling one of the most brutal dictators and wars waged on a civilian population in recent times? Surely, this company, as a legal person, and its CEO, should be tried for aiding war crimes at the least.
To aid and abet
There is no question that so-called aiding and abetting a war crime is itself a crime. To abet is to encourage the perpetration of the crime. To aid is to, for instance, provide the material or resources enabling a perpetrator to commit that crime. Both actions, in and of themselves, are crimes.
According to a paper in the renowned legal journal Cornell Law Review, there is some confusion when it comes to defining the act of aiding and abetting war crimes, but there are similarities across international tribunals and courts. According to customary international law, aiding and abetting a war crime looks something like this:
- A person or entity committed a war crime
- Another actor committed an act that had a (substantial) effect upon the perpetration of the offence, and
- The other actor acted with the knowledge of or intention of assisting, or most likely assisting, the perpetration of the offence
The last premise deals with the principle of criminal culpability, and it is where most of the disagreement hinges. In latin, it is called the principle of mens rea, or guilty mind.
For something to be a crime, the perpetrator must not only have committed an unlawful act, he or she must have committed the act with some level of intent.
There are different levels, or thresholds, of mens rea. Most international tribunals state that it is enough if the actor had knowledge of the consequences or likely consequences of his actions. That was the case for the International Criminal Tribunal for the former Yugoslavia, and The International Criminal Tribunal for Rwanda. According to the International Criminal Court, however, the actor needs to have acted with the purpose of producing such consequences.
According to Just Security, a law blog under Reiss Center on Law And Security at NYU School of Law, there is support for saying that such a strict intent-requirement could be relaxed when dealing with particularly grave crimes – like war crimes.
So, then the question becomes whether DanBunkering knew what the Russian militarily-controlled companies were doing.
That is of course a case for the prosecutors and investigators, and I won’t claim to have intel other than what simple searches on the internet can provide. The case is far more complex than that. But let’s just look at what such rudimentary research may point to.
Jet fueled war crimes
Russia is an ally of dictator Bashar al-Assad in Syria, and Russia has supported the Syrian regime since the beginning of the civil war in 2011. First politically, and from 2015 through direct military involvement. The EU has had sanctions in place since 2011, and Russia has publicly condemned these sanctions.
Numerous reports from trustworthy sources have strongly indicated that both Syrian and Russian military forces have been involved in hundreds of strategic bombardments of civilian targets in non-government-controlled territories in Syria.
A news briefing from Amnesty international in December 2015 accused Russian air strikes in Syria of killing hundreds of civilians and causing massive destruction in residential areas, striking homes, a mosque and a busy market, as well as medical facilities, in “a pattern of attacks that show evidence of violations of international humanitarian law”.
Between 2015-2017, the period of the jet fuel trade, Syrian and Russian air forces bombed medical facilities over 500 times, according to the Syrian American Medical Society and Amnesty International.
According to a report published in late 2016 from The Violations Documentation Center, a Syrian civil monitoring organization, the Syrian-Russian Coalition committed war crimes in a month long attack on the city of Aleppo from September to October 2016. The bombings killed more than 440 civilians, including more than 90 children. At least one medical facility was targeted. Human Rights Watch analyzed satellite photos and found 950 distinct new impact sites during the period.
Thousands of barrel bombs, usually dropped by helicopters, filled with explosives, shrapnel, oil, and in some cases poisonous gas or napalm, have killed thousands of civilians since the civil war broke out.
A report from the Organisation for the Prevention of Chemical Weapons (OPCW) accused the Syrian Air Force of twice using sarin and once using chlorine to attack the rebel-held town of Ltamenah in late March 2017. The poison was cast from SU-jets and a helicopter. The regime took control of the town with extensive help from the Russian Air Force, the report said.
Medical facilities and civilians are unlawful targets during conflict, and the willful targeting of such is a war crime. These bombings were regularly reported on by news media and humanitarian organizations throughout the period. It would not take more than reading the news to know of this.
So, did DanBunkering have a chance of knowing that their jet fuel would end up in this conflict? Yes.
As a leading company in the market for bunker oil, DanBunkering should be well aware of current sanctions on oil and fuel trades and know exactly how to ensure that they are upheld. This includes the evaluation of each trade, trade partner, and a basic understanding of geopolitics. If they claim not to possess the ability to do so, they are basically saying: We have no idea what we are doing. Just seeing how they present themselves on their website, that is not the case.
There were specific reports about how Russia defied EU-sanctions and smuggled jet fuel to Syria during the period of the trades. Evidence shows that DanBunkering has been transfering jet fuel to at least two of the Russian tankers involved in such breaches. The tankers are called Yaz and Mukhalatka.
In September 2016, the Greek coastal guard warned against the tanker Yaz due to sanction violations. In November 2016, Reuters published a story accusing Yaz and Mukhalatka of breaching EU-sanctions. The day before, DanBunkering had delivered over 5000 tons of jet fuel to the tanker Mukhalatka. A few days after the report from Reuters, it looks as though DanBunkering yet again delivered around 5000 ton to the tanker Yaz.
The owner of the two Russian tankers was put on US-sanction lists in December 2016. In January and May of 2017, DanBunkering delivered oil to Yaz yet again.
Further, last January new reports suggested that DanBunkering had engaged in what looks like a shady attempt to help the Russian military cover up their traces. According to the Danish Broadcasting Corporation, DanBunkering was in 2017 asked by Russian military to pay a shell company in Canada 3.2 million USD for around 4,900 tons of jet fuel, which DanBunkering later reloaded aboard Russian ships in the Mediterranean. Experts say it looks like an attempt to cover up sanction breaches.
These are just a few examples of breaches. More will likely see the day of light as the case moves forward. The indictment talks of 33 seperate trades in total. This means 33 times the company could have stopped to reconsider the risks and consequences of said trade.
It looks as though DanBunkering was not only aware of, put purposefully ignored the risk of breaching EU-sanctions.
A substantial effect
If we go back to the definition of aiding and abetting war crimes, customary international law holds that the aiding and/or abetting needs to have had a substantial effect on the principal crime. Did we see such a substantial effect in this case? That of course requires thorough analysis, but the 172,000 tons of jet fuel which DanBunkering did trade with Russian companies, and which ended up in Syria, is by experts assessed to have been pivotal to the outcome of the civil war.
The jet fuel did not only enable attacks on adversaries and civilians – it most likely prolonged the conflict and let Assad cling to power. In other words, the provision of jet fuel had a substantial effect upon the perpetration of the crimes committed by the Russian and Syrian forces as exemplified above.
So, where does that lead?
- We know that Russian and Syrian air forces have been involved in what seems to be systemic bombings of civilian targets in Syria during the period of the trade (and after)
- The traded amount of jet fuel is assessed to have been pivotal to the military engagements by the Syrian-Russian coalition, and;
- There is good evidence that DanBunkering knew there was a substantial risk that the traded jet fuel would end up in Syria, hence breaching EU-sanctions put in place in response to the regime’s attacks on its civilian population, hence assisting the perpetration of such attacks.
I do not think that DanBunkering and its CEO wished for the deaths of innocent civilians in Syria. I think they saw a lucrative business opportunity and willfully ignored the consequences of it.
But you simply should not be able to earn over 100 million US dollars from selling 172,000 tons of jet fuel to an untrustworthy stakeholder and ally of one of the most brutal dictators in the world – and then be able to claim blissful ignorance of the deadly consequences and get away with it.
It will be interesting to see whether the indictment will be extended to fully cover the gravity of what has been done.
*Bunkering is the process of transfering fuel via a ship-to-ship oil transfer
Sources: Danish Broadcasting Corporation, The Guardian, The Danish Prosecution Service, AIDING AND ABETTING IN INTERNATIONAL CRIMINAL LAW, by Oona A. Hathaway et al, Cornell Law Review vol. 104:1593, Just Security, Reuters, Amnesty International, Syrian American Medical Society.