Allied Export Control Bodies Need Broad Authorities, Funding to Tackle Russia, Former US Official Says

Allied export control authorities should be more nimble, harmonized and coordinated to maximize their effectiveness, particularly around Russia restrictions, said Kevin Wolf, a former senior U.S. export control official. In written comments last week to the U.K. Parliament’s arms export control committees, Wolf also said the U.K. and other countries can improve their export enforcement efforts against Russia, including by creating incentives for companies to “enhance” their compliance programs, dedicating more resources to study Russian sanctions evasion and working together to create a “standard structure of export control violations.”

Wolf, an export control lawyer with Akin Gump, told the U.K. Parliament that allied export control agencies “need to have sufficient legal authorities to be nimbler,” including broad authorities to more quickly revise list-based and end-use and end-user controls outside the existing multilateral control regimes. This will help them better align their controls, “adapt to new information about gaps and technologies, and to fix errors and unintended impacts” of the restrictions.

He also said allied nations need “broad and clear statutory authorities” to impose controls on commodities, software and technology outside the scope of the four main multilateral regimes. They also need the ability to impose restrictions on “specific end-uses other than just those related to weapons of mass destruction, particularly conventional military end uses,” and “specific end users outside the scope of sanctions authorities.”

“It will always be impossible to identify all the commercial items of use to military applications,” said Wolf, who is also a nonresident senior fellow at Georgetown’s Center for Security and Emerging Technology. “In such cases, regulatory controls must be imposed on the activities of companies and individuals to achieve the objective of the controls.”

There also should be “significantly more intra-government coordination” of export control policies and licensing, Wolf said. Most countries rely on their customs agencies to carry out export control work, but they should instead turn to law enforcement agents with export control training and with access to intelligence information and investigative resources.

“Given the elevated priority, national security significance, complexity, and scope of export controls, having better intra-government coordination is critical to the success of the Russia-specific and other controls,” Wolf said. “New rules without adequate enforcement are mostly meaningless.”

The U.K. and others also can take additional steps to prevent Russian export control evasion, including by training more prosecutors to handle export control cases and creating more incentives for companies to comply with the restrictions. “Company leaders need to commit that export control compliance is a priority, and fund their compliance programs accordingly,” Wolf said, adding they “need to know that export control violations cannot just be an acceptable cost of doing business.”

Wolf also called for a “standard structure of export control violations,” which could lead to different jurisdictions imposing similar penalties for similar violations. “Not all violations are equal,” he said, adding that willful and non-willful violations may call for either criminal or civil penalties, depending on the situation. “Governments with serious, but flexible enforcement authorities, can motivate industry compliance and better tailor penalties to the seriousness of the violation.”

Wolf’s comments touched on a range of other Russia-related export control issues. He said the controls have so far been “extremely effective,” citing his “perspective as a compliance attorney for allied country companies” and based on public information. The controls likely will have a “more significant longer-term” impact on Russia’s ability to wage war in Ukraine “than most of the various financial sanctions.”

“This means that the effectiveness of the current controls over high- and low-tech inputs in degrading the Russian military will magnify over time -- so long as the allies stay coordinated and committed to updating them, and dramatically more allied resources are dedicated to identifying, enforcing, and prosecuting violations,” he said.

But Wolf -- answering a question from Parliament about reports of Western components being found in Russian military items in Ukraine (see 2208090044) -- also said “no export controls are ever perfect.”

It’s “impossible to staple a government enforcement official to every export of hardware, software, and technology, even with dramatically more resources for allied export control licensing and enforcement agencies,” Wolf said. “Thus, my strong counsel to the Committees and all other allied country legislative and administrative bodies is to use these reports as a catalyzing event and justification for massive increases in funding and support for allied government investigation and enforcement authorities.”