Editor’s note: This is part of our series discussing reparative measures for victims of international law violations in the conflict in Syria, through the establishment of an intergovernmental victims fund or other means.
Since the outbreak of the Syrian civil war in 2011, the UK government has frozen over £161 million in assets linked to figures within the Syrian regime. Yet, to date, only a fraction of these funds have been confiscated by the UK government. None of them have been delivered to survivors of the conflict in Syria to compensate them for the harm suffered at the hands of the Syrian regime.
Syrian businessman Soulieman Marouf, sanctioned by the EU in 2012 due to his ties to the Assad family, purportedly possesses at least six luxury properties in London worth over £9.5 million. Despite having been sanctioned and investigated for money laundering in Switzerland, his assets in the UK remain untouched. Similarly, Bashar al-Assad’s uncle, Rifaat al-Assad – dubbed the “butcher of Hama” for his alleged role in the 1982 massacre of thousands in Hama – once owned a £26 million townhouse in Mayfair. Although the property was seized following his conviction for money laundering and embezzling Syrian state funds in France in 2020, the asset remains under the control of a UK court-appointed trustee, with its proceeds yet to reach those affected by Rifaat’s crimes.
The UK is failing to effectively recoup ill-gotten assets linked to the Syrian regime for the benefit of survivors of the conflict. In part, this failure is caused by limitations associated with pursuing asset confiscation mechanisms in the UK. Even where assets have been seized, they are rarely directed towards compensating survivors of the underlying atrocities. In practice, this means that survivors of human rights abuses by the Syrian regime may never receive any redress from the illicit wealth stored by Assads’ family and affiliates in London. New laws and policies are needed to rectify these shortcomings and facilitate the delivery of reparations for survivors of the conflict in Syria.
Confiscating the Proceeds of the Syrian Regime’s Abuses
Current English law is not equipped to confiscate the proceeds of the Syrian regime’s abuses. For example, under the Proceeds of Crime Act 2000 (POCA), individuals’ assets can be confiscated in two circumstances.
First, the assets of an offender convicted of a criminal offense can be confiscated where the offender has benefited from their criminal conduct. Prosecutions are difficult and costly and are unlikely to be successful against Syrian individuals who are not in the UK or for whom it is difficult to establish beyond a reasonable doubt that they committed a crime.
Second, property obtained through unlawful conduct can be subject to civil confiscation. However, demonstrating a nexus between the assets and unlawful conduct can be challenging, or even impossible, in the context of international human rights or humanitarian law violations. Often, the violations at the root of the individual perpetrator’s wealth are historical having been amassed over decades and laundered into apparently legitimate businesses using complex structures in offshore tax havens.
The introduction of Unexplained Wealth Orders (UWO) was intended to alleviate these challenges, but in practice, they have been largely ineffective in tackling illicit wealth. UWOs allow for the confiscation of assets without proving criminality by putting the burden on the respondent to show that their assets were lawfully obtained. Specifically, UWOs require a person who is a Politically Exposed Person (PEP) or is reasonably suspected of involvement in, or of being connected to a person involved in, serious crime to explain the origin of assets that appear to be disproportionate to their known lawfully obtained income. If the person fails to comply with a UWO, there will be rebuttable presumption that the property is “unlawfully obtained” and so recoverable for the purposes of civil confiscation action.
However, under the legislation, wealth is deemed lawfully obtained if it is generated legally under the laws of the country where the income arose. As such, an individual targeted could simply appeal to the authorities in their home state for the UWO to be dismissed. In addition, where a person has an ostensibly legitimate explanation, UK enforcement agencies must disprove the explanation to a civil standard to succeed in confiscation – re-introducing the evidentiary problems UWOs were meant to address.
Further, while section 241 of POCA allows for the confiscation of assets derived from “gross human rights violations” – regardless of whether the conduct was criminal in the country where it occurred – the definition of such violations is narrowly construed, limiting it to situations where: (i) a “whistle-blower” or “human rights defender”; (ii) has been subjected to torture or inhumane or degrading treatment; (iii) by, or on behalf of, a public official; (iv) for having sought to obtain, exercise, defend, or promote human rights or expose illegal activity by a public official.
This definition does not correspond to the meaning of “gross human rights violations” under international law. Although not formally defined in international law, “gross violations” typically denote types of violations that affect in qualitative and quantitative terms the most basic rights of human beings, including the right to life and the right to physical and moral integrity. It is generally assumed that genocide, slavery, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination fall into this category.
Given this narrow scope, to date, most confiscation proceedings initiated against individuals connected to international human rights or humanitarian law violations have targeted assets derived from their involvement in “economic crimes,” such as sanctions violations, resulting in relatively modest sums. For example, in 2019, the UK National Crime Agency (NCA) seized £24,668 from a Barclays bank account belonging to Aniseh Chawkat, Bashar al-Assad’s niece. The NCA found that 56 cash deposits were paid into Chawkat’s account at branches of Barclay’s bank by members of the Assad family in breach of UK sanctions, using money laundering networks in the UK and the Middle East.
Finally, there are no comparable options to POCA for confiscating Syrian State assets, which would require the establishment of a new legal basis. However, significant concerns persist around whether the confiscation of State-linked assets would be compliant with domestic and international laws relating to State immunity. As such, the remainder of this post focuses on the confiscation of private assets.
New Laws Are Needed to Confiscate the Proceeds of Human Rights Violations
Robust laws are needed to account for the ways in which illicit assets are hidden in the UK and ensure justice for survivors of the conflict in Syria. This can be achieved through updating POCA or developing new standalone laws to support survivors’ right to reparations under international law.
Such laws should establish a clear legal basis for confiscating assets, for example, because their owner is complicit in, or has supported or benefited from serious human rights or humanitarian law violations, while ensuring proportionality and respect for property rights and due process. There could also be a rebuttable presumption that property will be confiscated in particular circumstances as is the case currently with UWOs. Different categories of assets will require different approaches, and not all assets belonging to affiliates of the Syrian regime will necessarily meet the criteria for confiscation. However, repurposing even a small portion of them could make a profound difference for survivors of the conflict in Syria.
Confiscated Funds Should Benefit Survivors, Not the UK Government
The legal basis for confiscating assets is just the first step in re-cooping ill-gotten funds. Even where assets have been seized, English law does not require that their proceeds be used to compensate victims of the offense. Instead, law enforcement agencies can use their discretion to allocate confiscated assets as they see fit.
Typically, any amount confiscated is shared on a 50/50 basis between the UK Home Office and operational partners, such as the relevant police force, the courts, and prosecuting authorities, as part of the Asset Recovery Incentivisation Scheme (ARIS). It is not paid to the victims unless the prosecution makes a specific request for it, and the Crown Court imposes a compensation order under the Criminal Courts (Sentencing) Act 2000. In addition, opportunities for civil society or victim groups to intervene during criminal proceedings to advocate for compensation are limited, as highlighted in Nigeria v. SFO and Glencore [2022] EWCR 2.
In 2021/2022, £117.9 million of monies recovered under POCA were distributed among operational partners through ARIS, 71 percent of which was used by the agencies to fund “asset recovery work,” while only 8 percent was used for “community projects.” This practice has received criticism, with some labelling it as “policing for profit” because ARIS also rewards those who have not been involved in the recovery of assets. In 2016, the Home Affairs Committee, a cross-party committee of MPs responsible for scrutinising the work of the Home Office and its associated bodies, recommended the return or donation of at least 10 percent of the confiscated assets to the communities affected, for example “through charities.” However, this recommendation was rejected by the UK government, citing the existing discretion of operational partners to reinvest ARIS funds into local community activities.
To ensure funds are made accessible to victims, the UK government should act upon the recommendation of the Home Affairs Committee and allow for a percentage of confiscated proceeds to be re-purposed as reparations for victims. It should also introduce an overarching policy framework, requiring UK enforcement agencies to consider compensation for victims of international human rights or humanitarian law violations as a factor in the imposition of penalties and proactively consult with affected stakeholders. A similar framework already exists for “victims of economic crimes overseas.”
This would also be consistent with emerging international practice on enhancing State cooperation for the purpose of identifying, seizing, confiscating, and repurposing funds to provide reparations to victims of international crimes (as exemplified by the Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes (Ljubljana-The Hague Convention) . To date, 38 countries have signed the Ljubljana-The Hague Convention. Though the UK was an active participant during the treaty negotiations, it is yet to sign it.
Repurposing Fines from Sanctions Breaches
Beyond the outright confiscation of assets, the repurposing of fines for breaches of UK sanctions could provide a powerful alternative source of funding for reparations for survivors of human rights violations in Syria. The UK enforcement authorities can already impose significant financial penalties against those involved in breaching UK sanctions. Indeed, as detailed by colleagues in Just Security’s series, the Lafarge plea agreement demonstrates the potential to realize substantial amounts of money under such penalties.
However, there is currently no legal basis under English law allowing for fine monies to be repurposed for the benefit of victims. Without such a legal basis, these funds are paid into the government’s bank account at the Bank of England (the Consolidated Fund), allowing the government to inadvertently benefit from the violations. Legislative reform is needed to enable fines imposed for sanctions breaches linked to international human rights or humanitarian law violations to be re-directed to victims. There are two potential routes for the UK government to do so:
- the UK Parliament could pass legislation as part of the annual budgetary process, allowing for a portion of the fine monies to be sent to specific government departments, such as the UK Foreign, Commonwealth & Development Office, to allocate the funds to victims; or
- the government could introduce an “original authorizing statue,” re-directing a portion of fines imposed for sanctions breaches linked to human rights violations to a dedicated reparation scheme (see further below).
The effectiveness of these proposals hinges on the robust enforcement of UK sanctions. Historically, the UK’s Office for Financial Sanctions Implementation (OFSI) has had a very low enforcement rate for sanctions breaches, and the fines imposed are low. Since April 2022, OFSI has imposed only two fines totalling £45,000 despite receiving at least 463 reports of suspected breaches of targeted financial sanctions in 2022-2023. To reverse this disappointing track record, the UK government must increase resources for enforcement agencies, bolstering their capacity to investigate and prosecute sanctions evasion schemes.
The UK Needs New Reparation Mechanisms for Survivors of the Syrian Conflict
Effectively delivering funds to survivors of the Syrian conflict presents the final challenge in the quest for reparations. The UK currently lacks a mechanism to pool recovered funds, thus preventing those who have endured atrocities during the Syrian conflict from accessing them as reparations.
While existing victim compensation funds provide an avenue for reparations in cases of domestic crime, they are unavailable to non-UK or European Economic Area (EEA) citizens as well as victims of international crimes. For example, the UK’s Criminal Injuries Compensation Scheme (CICS) can only be accessed by UK residents or EU/EEA citizens if the crime occurred in the UK. Similarly, the Victims of Overseas Terrorism Compensation Scheme is limited to survivors of a specific list of terrorist attacks who are UK residents or EU/EEA citizens. Consequently, victims of international human rights and humanitarian law violations, both in Syria and beyond, are effectively barred from claiming reparations.
To rectify this injustice, the UK government should introduce new laws and procedures for fairly delivering repurposed funds as reparations in consultation with affected communities. These funds could be transferred to a new UK compensation scheme for individuals or groups of survivors of internationally wrongful conduct. They could also be transferred to existing schemes, such as the CICS, provided those schemes’ eligibility requirements are broadened to allow survivors of grave human rights and humanitarian law violations with a relevant UK nexus to access them. This nexus may be established where the violations abroad were committed against UK citizens, were perpetrated by UK persons, or where the perpetrators’ assets are in the UK. Such a scheme could allow for applications by individual survivors and offer grants to civil society organizations supporting affected communities. It could also award both financial assistance as well as broader reparative measures. In this respect, survivor participation in designing and implementing reparation schemes is critical to ensure reparations are inclusive and impactful.
Where appropriate, funds could also be re-directed towards established international mechanisms set up to provide reparations. For example, the Global Survivor’s Fund is a civil society organization that aims to enhance access to reparations for survivors of conflict-related sexual violence, including in Syria. Similarly, the UN Voluntary Fund for Victims of Torture collects voluntary contributions and distributes the funds through grants to civil society organizations providing medical, psychosocial, legal, and other support to survivors of torture and family members. The UK could deposit funds from liquidated assets, and repurposed fines, into such reputable funds to ensure reparations are delivered by those with the necessary expertise.
Conclusion
To date, the UK government has failed to effectively repurpose illicit wealth stored by the Syrian regime and its affiliates to provide redress for survivors of the conflict in Syria. To rectify these failures, the UK government should introduce new laws and procedures to ensure funds are available to address survivors’ urgent needs for reparations and distribute them in consultation with affected stakeholders.
