Lawfare Blog Article: Justice and the Confiscation of Russian State Assets

As Russia’s war on Ukraine lumbers on, calls to confiscate already-frozen Russian state assets grow louder. Shouldn’t the United States and its allies force a down payment on the reparations that Russia undoubtedly will owe Ukraine by the end of this conflict? Many in Europe have taken up this cry, and Canada has enacted the authority to confiscate Russian state assets but has yet to exercise it. If the United States and its allies take this step, they should use a portion of the distribution to satisfy some part of the judgments that victims of Russia’s lawlessness, in cases clearly connected to the invasion of Ukraine, already have obtained in international tribunals and national courts.

In the United States, Congress would likely have to adopt legislation to achieve this. Existing sanctioning authorities exclude confiscation of frozen assets, absent a direct armed attack on the United States that, thankfully, has not yet happened. The civil forfeiture alternative—which the 2023 Consolidated Appropriations Act endorsed as a means of converting frozen assets to funds for Ukrainian resistance—requires a preexisting criminal offense to take effect. It is difficult to envision how existing criminal law applies to the currently frozen state assets. Moreover, if the Supreme Court decides Türkiye Halk Bankasi A.S. v. United States, an argued case pending judgment, the way respected contributors to Lawfare have proposed, existing forfeiture authorities probably could not apply to the assets of foreign states or of state-owned enterprises.

If confiscation is the preferred outcome, then, Congress will have to do something. In earlier contributions to Lawfare as well as testimony before the Senate, I have identified some difficult questions that U.S. lawmakers will need to address if and when they take this step. In my judgment, though, neither constitutional nor international law presents an insurmountable barrier to a properly drafted statute permitting the confiscation of frozen Russian assets to satisfy outstanding judgments against Russia held by various claimants. And there are ways Congress and the president could permit this that would also redound to Ukraine’s benefit.

Enough time has lapsed to allow many of the victims of Russia’s earlier lawlessness to reduce their claims to a legal judgment. Many have used procedures to which Russia consented through international treaties, with fair and impartial arbitrations producing awards backed by the force of law. Others have taken advantage of exceptions to sovereign immunity in U.S. law to obtain U.S. court judgments. These cases all represent lawful determinations of the reparations Russia owes the victims of the Vladimir Putin regime’s growing disregard of international law.

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