Editor’s note: This is part of our series discussing reparative measures for victims of international law violations in the conflict in Syria, through establishing an intergovernmental victims fund or other means.

Last month, more than 400 Yazidi Americans filed a federal lawsuit against the French cement company Lafarge S.A. and its Syrian subsidiary, alleging that the companies aided and abetted and conspired with the Islamic State in Iraq and Syria (ISIS) and Al-Nusrah Front (ANF).  This is not the first time that Lafarge has made the news for its wrongful conduct in Syria. In October 2022, the U.S. Department of Justice concluded a criminal case against Lafarge S.A. and Lafarge Cement Syria S.A. in which the companies pled guilty to providing material support to terrorism, specifically by making payments to ISIS and ANF in 2013 and 2014 in order to continue operating their cement plant in Jalabiya in northeast Syria. The Lafarge plea agreement marked a historic moment for victims and survivors of ISIS and ANF—including communities in Syria and Iraq who were forced to live under ISIS and ANF control, members of specific groups like the Yazidis, and others—all of whom were subject to atrocities. Despite prosecutions of ISIS and ANF members under the principle of universal jurisdiction, especially in Europe, legal remedies that provide compensation to victims for serious violations of international law by non-State armed groups remain extremely scarce.

As part of the settlement with the DOJ, Lafarge agreed to pay a total of $777.78 million: a $90.78 million criminal fine and $687 million in asset forfeiture. This is a staggering monetary payout. While comparable to other U.S. asset forfeiture judgments, it dwarfs the sums available for international accountability efforts for atrocities in Syria, where the ongoing conflict continues to be rife with serious violations of international law, and where the civilian death toll by ISIS is estimated at over 5,000, on top of over 208,000 civilians killed by Syrian regime forces, Russian forces, and Iranian-backed militias. As just one example, the Lafarge asset forfeiture alone is 40 times the 2023 budget ($17 million) for the U.N.’s International, Impartial and Independent Mechanism for Syria. And although this was admittedly a one-time judgment and not a yearly budget, Lafarge is not the only corporate actor accused of complicity in crimes in Syria—and so other sizeable asset forfeitures related to Syria and other atrocities may well follow.

While the Lafarge proceedings offered a rare opportunity for U.S. authorities to prosecute violations related to the conflict in Syria, the award does not automatically benefit the relevant victims of ISIS and ANF atrocities. For U.S. asset forfeiture cases, victims generally must have suffered a pecuniary loss from the defendant to claim remission or restoration. Because demonstrating pecuniary loss requires documentation of a specific financial loss that directly resulted from the crime giving rise to the seizure—not, for example, a series of indirect losses precipitated by underlying or related offenses—ISIS and ANF’s victims would likely not be eligible to claim remission or restoration from the Lafarge proceeds.

Other avenues are also limited. Jurisdictional issues have largely confined accountability avenues for Syria to domestic universal jurisdiction cases. For practical reasons, these are generally focused on lower-level individuals, with little or no material or monetary awards paid to victims. Further, only a sliver of ISIS and ANF’s victims have standing to bring claims under the currently available legal frameworks. For example, there are at least four civil cases against Lafarge in the United States, but only U.S. nationals can serve as plaintiffs for the relevant claims. French authorities opened an investigation into Lafarge in 2017 after several NGOs and eleven former Syrian Lafarge employees filed a criminal complaint, but the resulting case is still pending, and the French Supreme Court dropped the charges of endangering the lives of former Syrian employees. In Iraq, the Yazidi Survivors Law allows a subset of survivors—ethnic and religious minorities who suffered crimes such as kidnapping, enslavement, and sex abuse at the hands of ISIS—to claim compensation.

Despite the U.S. Attorney General (AG)’s significant discretion over the forfeited assets, and the DOJ’s stated policy to direct forfeiture proceeds to benefit victims, it is unclear what he intends to do with the proceeds of the Lafarge forfeiture—and whether the U.S. Government will simply retain the funds for its own federal official use.

As previously discussed on Just Security, there is no public information as to how the DOJ intends to allocate the $687 million Lafarge forfeited—even a portion of which could be instrumental in offering reparative measures to non-U.S. victims of ISIS and ANF (i.e., those who cannot separately recover in U.S. courts but who are the victims of the precipitating crimes). Nor is there sufficient clarity and transparency as to the exact extent of the AG’s discretion, nor what the limits to that discretion are. Given that Lafarge’s crimes primarily occurred in Syria and Iraq and so impacted victims of ISIS and ANF there, proceeds from the Lafarge funds should benefit these victim populations, not just enrich the U.S. treasury.

The remainder of this post sets out (1) the AG’s broad discretion under U.S. law to earmark the Lafarge proceeds, and where transparency and clarity is needed; (2) the specific procedural pathways through which the funds might benefit non-U.S. victims of ISIS and ANF; and (3) the urgent need for a wider, transparent DOJ policy that earmarks assets to underlying victims. (Note that the authors of this article are currently advocating for the AG to use its discretion to divert funds to non-U.S. victims of ISIS and ANF).

The Department of Justice has broad discretion to disperse the funds with earmarks for victims.

The AG’s discretion over forfeited property more broadly is derived from multiple statutory authorities and is well-settled under U.S. law. As the U.S. District Court of the Southern District of New York said, “[t]he Attorney General has discretionary authority to use forfeited property to compensate victims of a federal offense giving rise to forfeiture.” In past cases the DOJ has used its discretion to prioritize victims of underlying crimes—including those who cannot show a clear pecuniary loss—ensuring that victims receive compensation. For example, the AG authorized a transfer of forfeited Russian assets for use in Ukraine (albeit with Congressional help). The DOJ has also repatriated funds seized from former kleptocrats to foreign governments, sometimes earmarked to support certain projects.

In the present case, while the statutory language appears to indicate that the AG has discretion to use the Lafarge assets to compensate non-U.S. victims, the interplay between the relevant and applicable statutes is unclear without adequate guidance.

Congress has given the AG discretion to use forfeited assets to restore and compensate victims and “protect the rights of innocent persons which is in the interest of justice.” Although the AG may also transfer forfeited assets to other federal agencies and/or retain assets for federal official use, distributions to victims is a “primary goal” that should take precedence “[w]henever possible,” and victim compensation and all third-party interests (including international sharing) must be resolved before forfeited assets can be transferred or retained for federal official use.

For Lafarge, the plea agreement showed the funds were seized under 18 U.S.C. §§ 981(a)(1)(C) and 981(a)(1)(G), 21 U.S.C. § 853(p), and 28 U.S.C. § 2461(c).

Under 18 U.S.C. § 981(e), the AG is authorized “to retain property forfeited pursuant to this section, or to transfer such property . . . to any other Federal agency . . . [or] as restoration to any victim of the offense giving rise to the forfeiture,” under any terms or conditions. Within asset forfeiture, restoration refers to the AG’s authorization of the use of forfeited funds to pay a restitution order entered by a court to a victim of a criminal offense. As with remission and restitution, this process is not available for victims of the underlying terrorism crimes in Lafarge. However, the AG is also authorized under 21 U.S.C. § 853(i) to “restore forfeited property to victims of a violation of this subchapter, or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with the provisions of this section.”

According to the Lafarge case documents, the $687 million forfeiture was deposited into the Assets Forfeiture Fund (AFF) on Nov. 9, 2022, shortly after the Oct. 18 plea agreement, and there has been no public indication that the funds have been moved since the deposit. Congress created the AFF under 28 U.S.C. § 524(c) as the ultimate depository for “all forfeitures under any law enforced or administered by” the DOJ, with certain exceptions when property should go to other specific funds, none of which apply to the Lafarge assets. Under 28 U.S.C. § 524(c)(1), Congress identifies the limited “law enforcement purposes” for which funds in the AFF “shall be available,” one of which is the AG’s authority to make discretionary remission disbursements (28 U.S.C. § 524(c)(1)(E)).

It is unclear how statutes addressing the AFF, including 28 U.S.C. § 524(c), interact with the discretionary authorities over forfeitures granted to the AG in other statutes, such as 18 U.S.C. § 981 and 21 U.S.C. § 853. The DOJ’s Asset Forfeiture Policy Manual 2023 and The Attorney General’s Guidelines on the Asset Forfeiture Program do not appear to address this, though they mention that “[t]he Attorney General has authority to dispose of forfeited assets pursuant to 28 U.S.C. § 524(c) and other statutes.” This question is particularly pertinent in cases like Lafarge where forfeited assets are directly deposited into the AFF. Relevant authorities have privately indicated that the DOJ may transfer to France a portion of the $687 million forfeited from LaFarge, as it assisted in the U.S. investigation. This authority to carry out international sharing is not referenced in 28 U.S.C. § 524 but is referenced in other statutory provisions, thus suggesting that the AG can use his discretion outlined in other statutes on funds in the AFF.

There are several options for how the Lafarge funds could be dispersed to benefit non-U.S. ISIS and ANF victims.

While the DOJ’s discretion has limits, it allows for considerable creativity in developing avenues to divert money toward the appropriate affected communities. For Lafarge, the following are three possible non-exhaustive options.

  • First, the DOJ can preserve money in the immediate term, earmarking it for disbursement to an eventual intergovernmental Syria victims fund. Such a fund has been recommended in a European Parliament resolution and by Syrian and international civil society, as detailed by colleagues in Just Security’s series on the matter. It could draw upon the proposals introduced for Ukrainian victims following Russia’s full-scale invasion in February 2022, such as a claims commission (as the DOJ has previously partnered with a private company to administer in other asset forfeiture cases). It should ultimately be a Syrian-led establishment focused on the unique situation of the affected communities.
  • Second, the DOJ could work with France to create an intergovernmental fund to benefit non-U.S. victims of ISIS and ANF. As indicated above, France may have helped U.S. authorities investigate Lafarge and may receive a portion of the forfeited funds, which should be used to benefit such victims. While facilitating a victims fund is resource-intensive, partnering with a second country would split the administrative costs. Although such an option could introduce additional hurdles in balancing the two countries’ policies, there is historical precedent for such a partnership in cases of international asset forfeiture. While often the United States simply repatriates funds—which is not possible under the Assad regime—in one instance the United States worked with Switzerland to create the BOTA Foundation to return $84 million of corrupt Kazakh assets to the Kazakh population through targeted programming.
  • Finally, the DOJ could disperse the money to the U.S. State Department, which could then use the money to support programming for non-U.S. ISIS and ANF victims. These would have to be carefully managed to ensure that the intended beneficiaries are indeed benefiting—and that the funds are not simply going to the overhead of U.S. government offices and U.S. and international organizations. However, the State Department has ample experience implementing grants to benefit victims and supporting victims through other avenues, such as contributions to the N. Voluntary Fund for Victims of Torture, and so has the administrative infrastructure in place to oversee the process.

It cannot be stressed enough that the above list is non-exhaustive, and the DOJ should explore any and all avenues that may divert funds to non-U.S. victims of ISIS and ANF—especially those that are victim and survivor-centered and prioritize the wants and needs of the affected communities, as identified by those communities themselves.

This problem should be addressed for future cases through official Department of Justice policies.

This is not a one-off problem—the United States can and should seize other atrocity-linked assets. Nor is this issue specific to the United States. Other countries are or will have to grapple with the same dilemma: ensuring criminal prosecutions rightfully divest individuals and companies of ill-gotten gains linked to atrocities, but that those asset forfeitures do not inadvertently monetarily benefit the prosecuting State. Plainly, States should not profit from atrocities.

The United States has already recognized this principle in other conflicts. Notably, Congress acted in the case of Ukraine to ensure that the seized assets of individuals and entities subject to targeted sanctions under certain legal authorities could be sent as aid. But Congress cannot act each and every time a conflict arises, and so in the absence of a global bill that could adequately cover each unique atrocity, the DOJ must instead turn to its own discretion to act.

The DOJ must lead by example and use its discretion to divert at least a portion of the seized $687 million in Lafarge to non-U.S. victims of ISIS and ANF. It then must act beyond this case by making it the DOJ’s policy to divert seized assets linked to atrocity crimes to the communities affected by those crimes. This policy could, for example, be enshrined in the DOJ’s policy manuals, such as the Asset Forfeiture Policy Manual, with language making explicit the legal authority to take such actions. To the extent possible and feasible—and where it does not risk endangering any parties—the DOJ should also make public the main details of these disbursements: the relevant case, the amount seized, the amount disbursed to the affected communities, and the method of disbursement to those communities (e.g., a victims fund or a grants program).

IMAGE: A general view shows the Lafarge Cement Syria (LCS) cement plant in Jalabiya, some 30 kms from Ain Issa, in northern Syria, in February 19, 2018. The choice to cling on in Syria after other international firms fled the fighting has plunged Lafarge, which merged with Swiss firm Holcim in 2015, into a spiral of scandal and recriminations that has dragged in the French state. (Photo by DELIL SOULEIMAN/AFP via Getty Images)