Profiting from Atrocity: The Emerging Legal Threat to Companies Enabling War Crimes

[Sara Segneri is a Partner at Confinium Strategies]

On 18 November 2025, an investigative report disclosed that Polish manufactured TNT is being used in U.S.-produced bombs exported to Israel for use in the ongoing siege on Gaza. According to the report, the Polish state-owned company Nitro-Chem is the sole producer of TNT for the EU and NATO. American production of MK-80 and MK-84 bombs, as well as BLU-109 penetrator bombs, is possible only with foreign-sourced TNT (primarily from India and Poland). This is because the U.S. stopped manufacturing TNT domestically in 1986. News outlets have recently covered the TNT shortage, particularly in relation to the Ukraine-Russia conflict. According to Nitro-Chem’s annual reports, TNT and RDX is exported directly to Israel and the United Kingdom. 

Open-source intelligence over the last two years on the aerial bombardment and extensive destruction of Gaza makes clear that Israel is utilising the U.S. exported high capacity bombs in their bombing campaigns, particularly the so called “bunker busters,” and that these bombs contain Polish manufactured TNT. This conclusion is supported by research sourced from Nitro-Chem, U.S. Government databases, and the U.S. manufacturer of the bombs: General Dynamics Ordnance and Tactical Systems (GD-OTS). The report also cited United Nations Satellite Centre data indicating that, by October 2025, 83% of all structures in Gaza had damage from Israel’s bombing campaign, including 17,734 destroyed structures and 61 million tons of debris. 

Legal Implications for Corporations and Governments 

In modern conflicts, weapons of war often originate from corporate supply chains, raising urgent questions about legal accountability beyond direct perpetrators, as bombs and munitions flow into the conflict and companies profit from the sales. Such cases highlight a troubling scenario: corporations that manufacture TNT or other bomb components may be aiding grave violations of international law by serving as an essential link that makes commission of crimes possible. What are avenues of potential criminal liability faced by corporations when their products are used to commit war crimes or crimes against humanity? Are there alternative theories of liability, such as for financial crimes, terrorist financing, or sanctions evasion? 

For a more in-depth examination of corporate liability in war crimes, visit the prior Opinio Juris series by Maya Nirula on The Role of Business in War, Part I and Part II, as well as Ambassador David Scheffer’s article. For more in depth analysis specifically as to the arms trade, Tom Hamilton’s article and book are useful resources. 

International Law

The central legal concern investigations such as this one raise for corporations, particularly arms manufacturers, is the potential of being found complicit in the commission of war crimes, crimes against humanity, and potentially genocide. Article 25(1) of the Rome Statute limits the ICC to prosecuting “natural persons,” so companies cannot be directly prosecuted. But corporate officers are within the Court’s reach.

International criminal law has long acknowledged that those who assist in atrocity crimes can be held accountable under aiding and abetting liability theories if they knowingly provide the “means” for commission of atrocities. Under Article 25(3)(c) of the Rome Statute, a person is criminally responsible for aiding and abetting a crime if they do it “[f]or the purpose of facilitating” the crime. Article 25(3)(d)of the Rome Statute makes a person criminally responsible for contributing to a crime committed by a group of people acting with a common purpose, even if they did not directly commit the crime. This is an accessory form of liability, which means the person can be held responsible if the crime was, in fact, committed or attempted by the group. 

Notably, after World War II, in the Zyklon B Case (1946), a British military tribunal convicted industrialists whose companies aided and abetted murder by supplying the poison gas used in Nazi extermination camps with knowledge that the gas would be used to kill. Subsequent tribunals cemented this principle by prosecuting individuals for aiding and abetting war crimes or crimes against humanity. The tribunals used a knowledge-based standard: the accused must knowingly provide substantial assistance to the crime. Under this standard, mens rea is satisfied if the accomplice knew their conduct would contribute to the commission of the crime, even if helping the crime was not their primary purpose. 

Some human rights lawyers contend that requiring proof of specific intent to commit war crimes is “not adapted to the reality of how business actors contribute to crimes.” International prosecutions of corporate officials should proceed in line without how corporate complicity determinations occur in other settings, examining whether the actor had knowledge of the support and its likely consequences, or had a conscious willingness to proceed. This means company directors and officers who authorize or are involved in the supply chain to conflict zones with documented risks of IHL violations can face individual criminal prosecution. A crucial factor in determining liability is a corporate officer or officers knowledge that the corporation’s products would be used to commit international crimes. 

For the last two years, despite attempts at censorship or one-sided narratives, evidence of war crimes and atrocities in Gaza has been documented and shared on mainstream and social media, and there have been multiple briefings at the United Nations and domestic-level governmental bodies. In addition, the International Criminal Court (ICC) has an ongoing investigation of the situation in Palestine and the International Court of Justice (ICJ) has held lengthy hearings, examined voluminous amounts of evidence, and issued preliminary measures. 

Notably, in the late October 2023, the Polish Ministry of Foreign Affairs released statements about potential IHL violations, including warnings that “any military action must be carried out under the applicable rules of international and humanitarian law, ensuring the protection of the civilian population” and “strongly condemning actions which take the form of [a] collective punishment inflicted on innocent residents of the Gaza Strip and the West Bank.” 

Again, in October 2024, a Polish representative to the UN made the following statements during a UN Security Council briefing on Palestine: 

We continue to witness civilian casualties, including many children. We urge all parties to prioritize the protection of civilians and to make every possible effort to prevent further casualties. The deteriorating humanitarian situation in Gaza is a major concern, as hunger and malnutrition rates continue to rise. We are deeply disturbed by reports of hospitals and schools being targeted in the attacks.

In its May 2024 Order, the ICJ stated that Israel “shall… immediately halt its military offensive, and any other action in the Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

Most recently, the Polish Prime Minister clearly affirmed the knowledge that war crimes are being committed in Gaza, stating “[t]errible things are happening there, and those responsible will have to bear the consequences… We must call the crime by its name. As I said, there can be no justification for killing children or starving civilians. We know Hamas is responsible or jointly responsible, yes, but this still does not in any way legitimize Israel’s actions in Gaza.” 

Finally, in its October 2025 Advisory Opinion, the ICJ set forth clear statements as to the ongoing IHL violations in Gaza: 

Israel launched a large-scale military operation in the Gaza Strip, by land, air and sea, which has caused massive casualties, including the death of tens of thousands of civilians, a large number of whom were women and children, extensive destruction of civilian infrastructure and the repeated displacement of the overwhelming majority of the civilian population in the Gaza Strip. … The United Nations reported numerous attacks on school buildings and healthcare facilities.

This is not a crisis in which anyone with access to the internet or a television can claim a lack of knowledge, particularly not executives in the arms and defence industry.

Apart from individual criminal liability, states themselves have duties to prevent corporations from supplying the means for committing war crimes. Under Common Article 1 of the Geneva Conventions, all states must “ensure respect” for IHL, which jurists interpret as prohibiting arms transfers to parties likely to commit war crimes. The 2014 Arms Trade Treaty (ATT) explicitly forbids states from authorizing any arms export if the government knows the weapons would be used to commit war crimes. Even if war crimes are only a clear risk, the ATT requires states to assess and deny exports that could facilitate serious violations of IHL or human rights. 

Under the ATT, States are also obliged to block the transfer of items governed by the treaty “if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” This is consistent with Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, which includes an obligation to prevent the crime of genocide, thus imposing an obligation on states to anticipate future events.

Arms-export licensing is meant to ensure governmental control and vetting of arms deals. In many jurisdictions, a license will not be granted if there is a clear risk the weapons will be used for serious violations of international law. The EU Common Position requires member states to deny licenses if there is a “clear risk” that military equipment might be used to commit violations of IHL or human rights. 

However, companies are also obligated to conduct their own due diligence and not hide behind the state’s decision. Legal systems are moving to adopt a duty of due diligence for transnational corporations to ensure that they do not engage in or facilitate serious human rights violations or international crimes. This includes the U.N. Guiding Principles on Business and Human Rights, the OECD’s guidelines on responsible business conduct, and the EU Regulation of 17 May 2017 on conflict minerals. A crucial question here is whether having an official export license (or other government authorization) protects a corporation from criminal liability if the weapons are later used in war crimes. Or might un unlawfully issued government license even implicate authorities in the wrongdoing alongside the company? This is one of the contentions in the pending litigation in the UK over arms exports to Israel. 

Given the limits of ICC jurisdiction and the further restriction on prosecuting only individuals, national courts have increasingly become avenues for holding corporations or their executives accountable for aiding and abetting war crimes.  Many countries, including France and the Netherlands, have enacted laws to prosecute war crimes, crimes against humanity, and genocide under their domestic criminal codes (sometimes asserting universal jurisdiction over atrocities committed abroad). Unfortunately, some jurisdictions, such as the U.K., still limit atrocity prosecutions to individuals only and have overly restrictive residency requirements. 

Multiple questions arise in these scenarios. Does the human rights-based duty of due diligence supersede a national license and thus render the export illegal under international law? Who is criminally responsible for this violation, the authorising state or the exporting corporation – or both? Does a corporation or corporate official have a defence of reasonable reliance on the state authorisation? Or should they be required, particularly in cases of war crimes or genocide, to engage in their own internal analysis as to their activities? 

When considering corporate accountability for war crimes, the nature of the corporation matters. State-owned enterprises (SOEs), especially in the defence sector, raise special considerations compared to purely private companies. Many countries’ arms industries include state-owned companies, calling into question aspects of immunity. Legal scholars note that under customary international law, states are absolutely immune from other states’ criminal jurisdiction, and they argue this immunity should sometimes extend to state instrumentalities when they are acting as an arm of the state. Another angle is the “act of state” or political question doctrine in some countries, wherein courts are reluctant to second-guess a sovereign decision (like granting an export license) especially if it involves foreign policy, a notable part in the recent decision by the UK Courts in the F-35 challenge. These questions are ones deserving of lengthier debate and scholarship, particularly with the grown of SOEs, PIFs and SWFs in the defence sector.

Financial Crimes 

In addition to direct war crime charges, companies that trade in war materials or operate in conflict zones may face criminal liability for financial crimes connected to atrocities, whether by financing or supporting armed groups, by laundering the proceeds of war crimes, or by committing sanctions-evasion offenses related to the proceeds of illegal arms deals or facilitating financial transactions, as in the recent BNP Paribas case. 

Conclusion

If we are to give true meaning to the purposes of the United Nations Charter, the Rome Statute, and the Arms Trade Treaty, we must implement laws and regulations and promote jurisprudence that affirms companies have independent duties of due diligence in matters of war crimes, crimes against humanity, and genocide and cannot simply or solely rely on national authorisation procedures. 

We cannot absolve an arms corporation and its corporate officers of all criminal (or civil) liability if a corporation knowingly provides weapons or other necessary or material means that facilitate or make possible the commission of international crimes. Manufacturers of TNT and other bomb components (and all defence contractors and resource corporations operating in conflict zones) must recognize that the doctrines of common purpose or aiding and abetting are not theoretical: they have been and will be used to prosecute those who enable and facilitate war crimes and crimes against humanity.

Companies should conduct rigorous human rights due diligence when dealing with conflict-affected clients or regions, particularly if the red flags of war crimes are apparent. Proactive measures to vet end-users and end-uses of products are not just ethical recommendations but part of legal risk management that goes beyond minimum national export licensing requirements. 

Governments issuing export licenses must uphold also their international obligations. State authorization and review should be meaningful and according to the law, including external experts and analysis, and should avoid giving undue weight to foreign policy goals or considerations. No actor, whether a government official, rebel commander, or business corporation, should be beyond the law if they substantially contribute to atrocities. 

Profiting from atrocity carries profound legal risks, and those who enable the worst crimes can themselves be called to account as architects of evil. The evolving nexus of international law and corporate accountability aims to ensure that “never again” applies not just to perpetrators on the battlefield, but also to those in boardrooms who would equip or finance them.