MARWAN 1: How U.S. Central Command Transferred Seized Iranian Ammunition to Ukraine
On December 1, 2022, the USS Lewis B. Puller, an expeditionary mobile base ship assigned to the U.S. 5th Fleet and U.S. Naval Forces Central Command, intercepted a fishing trawler, the Marwan 1 (Marwan), a flagless vessel, in the Gulf of Oman. A security team from the Lewis B. Puller boarded the trawler and discovered more than 50 tons of ammunition, proximity fuses, and rocket propellant linked to the Iranian Republican Guard Corps (IRGC) and destined for Yemeni Houthis. The seized lethal aid included over one million rounds of 7.62 x 54mm ammunition; 24,000 rounds of 12.7 x 99mm ammunition; 6,960 proximity fuses for rocket-propelled grenades; and 2,000 kilograms of propellant for rocket-propelled grenades.
The international laws applicable to these seizures include UN Security Council Resolution (UNSCR) 2216 and Article 110 of the UN Convention on the Law of the Sea (UNCLOS). These concern, respectively, an arms embargo against the Houthis and the right of visit on the high seas. UNSCR 2216 calls on all member States to “immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer” of arms to the Houthis. The United States enforces UNSCR 2216 consistent with international and domestic law.
Additionally, U.S. domestic law provides several options to seek the judicial forfeiture of the illicit aid as assets of a foreign terrorist organization and then transfer the same to Ukraine. This post focuses primarily on the international legal issues relating to the seizure of the Iranian ammunition before addressing, in brief, the domestic authorities used to transfer the lethal aid to Ukraine. First, however, it considers the U.S. government’s wider approach to the forfeiture and transfer.
An Interagency Approach
The forfeiture of the lethal aid onboard the Marwan required a whole-of-government approach. Over the span of several months, U.S. Central Command (USCENTCOM) led interagency coordination with other combatant commands, operational units, attorneys, law enforcement agents, and policymakers. The agencies involved included USCENTCOM planners and intelligence analysts, the U.S. Department of Justice (DOJ), and the U.S. Attorney’s Office for the District of Columbia (USAO). The various agencies collaborated to develop the legal and factual bases necessary for taking legal title of the lethal aid and then transferring it to Ukraine.
On October 4, 2023, after obtaining a successful civil forfeiture judgment in the U.S. District Court, USCENTCOM and the DOJ announced the transfer of more than one million rounds of 7.62mm ammunition to Ukraine. Not only could Ukraine use this ammunition to defend its territorial borders against the Russian invasion. The transfer could also sow dissension between Iran and Russia while dissuading Iran from future smuggling operations.
UNSCR 2216
In February 2015, during Yemen’s civil war, Houthi insurgents with links to Iran and Hezbollah captured the capital city of Sana’a. Shortly thereafter, on April 14, 2015, the UN Security Council adopted UNSCR 2216. Pursuant to this resolution, member States agreed,
[To] immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer [of arms] to, or for the benefit of the Houthis. . . . Upon the discovery of such arms, Member States shall seize and dispose (such as through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) of such items[.]
In addition to UNSCR 2216, the Security Council established a Panel of Experts (PoE) to monitor and publish annual reports regarding the Yemen civil war and the effectiveness of the targeted arms embargo. The PoE identified a “repeated practice of Iran providing military support, particularly in the form of conventional weapons and munitions, to the Houthi.” Based on several interdictions of attempted arms embargo violations, it became clear that Iranian smuggling networks used traditional cargo vessels, such as dhows, which operated without proper registration papers and without transmitting an automatic identification signal.
Importantly, the UN PoE documented maritime interdictions that involved similar routes, indicia (i.e., traveled without displaying a national flag), and lethal contraband as those connected with the Marwan.
While Iran’s weapons smuggling enterprise clearly violated UNSCR 2216, USCENTCOM relied on another international legal authority to board the Marwan to subject it to U.S. domestic law and to seize its illicit cargo.
Right of Visit to Inspect Stateless Vessels under Article 110 UNCLOS
To maintain order on the high seas, a ship is subject to the exclusive jurisdiction of its flag State. Under Article 91 UNCLOS, every vessel at sea must sail under a national flag and every State must “fix the conditions for the grant of its nationality to ships . . . and for the right to fly its flag[.]” This international norm establishes that a State is principally responsible for regulating the conduct on a vessel through the application of its domestic laws.
Because a Stateless vessel may attempt to elude State jurisdiction and control, the law of the sea recognizes certain limited circumstances when a non-flag State may exercise extraterritorial jurisdiction over a ship’s navigation on the high seas. For instance, Article 110 UNCLOS, provides that a warship may board a foreign ship when there may be reasonable grounds to suspect the same is engaged in piracy, engaged in the slave trade, or is without nationality.
Although the United States is not a party to the UNCLOS, it has abided by its rules related to navigation on the high seas as customary international law.
Under the right of visit, a nation’s warship may stop and board a vessel for the purpose of ascertaining the vessel’s nationality. Stateless vessels do not enjoy the protection of any State and are subject to the domestic laws of the boarding State during inspection. Thus, when the USS Lewis B. Puller security team boarded the Marwan to ascertain her nationality, the vessel became subject to U.S. domestic laws once the USCENTCOM naval force had determined that it was without nationality, i.e., a Stateless vessel.
Having established the Marwan was subject to U.S. extraterritorial jurisdiction, the Department of Defense (DoD) coordinated with the DOJ for a civil forfeiture action in U.S. District Court. Pursuant to U.S. law, all assets, foreign or domestic, of a foreign terrorist organization (FTO) engaged in planning or perpetrating “any Federal crime of terrorism . . . against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization” is subject to forfeiture (18 U.S.C. § 981(a)(1)(G)(i)).
The U.S. Department of State had designated the IRGC as an FTO as early as April 15, 2019. U.S. law defines the phrase “federal crime of terrorism” and lists the applicable terrorism and terrorism-related crimes (18 U.S.C. § 2332b(g)(5)). Thus, DOJ only had to establish that the IRGC had placed the lethal aid on the Marwan. To this end, USCENTCOM provided crucial, unclassified information that demonstrated the nexus between the lethal aid and the IRGC. For example:
— In mid-November 2022, while the Marwan was in the waters off the coast of Iran, the Iranian Navy boarded the vessel and loaded it with ammunition and explosives. The Iranian Navy personnel then attempted to conceal the lethal aid by placing oranges, apples, and soft drinks on top of it.
— The Marwan was previously involved in the smuggling of munitions with participation of the Islamic Republic of Iran Navy.
— Parts of the crew member manifest were written in Farsi and a date provided in the Persian calendar format.
— The manifest revealed the port of departure as “Bandar Abbas,” which is known as the main base for the Iranian Navy and the headquarters of the IRGC Navy.
On July 20, 2023, the U.S. government gained legal ownership of the lethal aid through DOJ’s forfeiture process.
Transfer of Lethal Aid to Ukraine
During the legal proceedings, USCENTCOM worked with the UN PoE to facilitate their inspection of the lethal aid as part of its UNSCR 2216 mandate. Meanwhile, the DoD considered and planned transport of the lethal aid to Europe for follow-on divestment to Ukraine’s armed forces. The ultimate decision to transfer the IRGC-sourced lethal aid to Ukraine would involve significant policy implications. Based on the available security assistance authorities, only the President or the Secretary of Defense could authorize the transfer of the lethal aid to Ukraine.
The United States has provided billions of dollars in aid to Ukraine in the years since Russia’s invasion of Crimea. Since 2014, the United States has committed more than $46.7 billion in military aid, much of it through the Ukraine Security Assistance Initiative (USAI). Pursuant to the FY2016 National Defense Authorization Act (NDAA), § 1250 (as amended), the Secretary of Defense, in coordination with the Secretary of State, may provide “security assistance and intelligence support, including training, equipment, and logistics support, supplies and services, to the military and other security forces of” Ukraine to protect its territorial integrity and defend against Russia.
Significantly, for the purpose of any transfer of forfeited property to Ukraine, the USAI authorizes the Secretary of Defense, with the concurrence of the Secretary of State, to “make available to the Government of Ukraine weapons and other defense articles, from the United States inventory and other sources, and defense services.” An important distinction between the USAI and Presidential Drawdown Authority (PDA), in the context of Ukraine military assistance, is that the USAI is more flexible. Because the USAI allows the President to provide Ukraine weapons from the “United States inventory,” the forfeited illicit cargo did not have to be transferred to DoD stocks. In contrast, under the PDA, the President can authorize the immediate transfer from DoD stocks defense articles and services, up to a funding cap established in law, in response to an “unforeseen emergency” (22 U.S.C. §2318(a)(1)).
Conclusion
The Marwan forfeiture case resulted in the United States transferring over one million 7.62mm rounds to Kyiv. Although the transfer may have been minor in aggregate terms, it demonstrated American resolve “to counter the flow of Iranian lethal aid . . . by all lawful means” and its commitment to Ukraine. Indeed, Oleksandr Vasiuk, a Ukrainian Member of Parliament, who co-chairs a committee on cooperation with the United States, said the transfer “proves once again that the US is our strong ally . . . . These seized weapons and ammunition could have been simply disposed of, but Washington understands how important it is for us to get help[.]”
Notwithstanding its impact on the battlefield, the transfer of Marwan’s illicit cargo has potential strategic implications. Iran has continuously supplied the Russian military with lethal drones to attack Ukraine. As Jonathan Lord, a senior fellow and director at the Center for a new American Security, said, “There is poetic justice in Ukraine utilizing seized Iranian weapons to defend its people against Russia’s criminal invasion and abuses.” Further, the arming of Ukrainian soldiers with seized IRGC materiel could “put greater pressure on the burgeoning relationship between Moscow and Tehran.”
The Marwan served as a successful proof of concept for a whole-of-government approach to lawfully degrade Iran’s ability to destabilize the region. Working with USCENTCOM, in July 2023, DOJ and USAO initiated a subsequent civil forfeiture action covering multiple ship interdictions of IRGC illicit aid en route to Yemen, which included over 9,000 assault rifles, 284 machine guns, approximately 194 rocket launchers, over 70 anti-tank guided missiles, and over 700,000 rounds of ammunition. On December 1, 2023, the District Court issued a similar forfeiture judgment and order. These cases validated a DoD and interagency playbook for competition against Russia and provided a viable legal option to use seized material for U.S. national interests while imposing additional costs for Iranian malign activities in the central region.
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Lieutenant Colonel Nolan Koon serves as a Team Chief for Contract Litigation and Intellectual Property Division, U.S. Army Legal Services Agency (USALSA).
Lieutenant Colonel Sean Zehtab is a Judge Advocate currently serving as the Chief Contracts Law Counsel at United States Central Command.
Photo credit: NAVCENT Public Affairs