Jurisprudence

Give Seized Russian Assets to Ukraine as Reparations

The Russian yacht Flying Fox at the Don Diego port in Santo Domingo on March 25
The U.S. could sell this and give the money to victims of Russia’s invasion of Ukraine. Erika Santelices/Getty Images

While Ukraine has had some enormous early successes in facing down the Russian invasion, the road ahead will be extremely difficult. The atrocities in Bucha and beyond—as well as speculation over Russian chemical warfare—underscore the need for the international community to support Ukraine by intensifying pressure on Russia. As editors of the Brookings Sanctions Tracker, we know sanctions are one of the most important ways to do that. The unprecedented early sanctions regime against Russia’s central bank helped freeze much of Vladimir Putin’s war chest. Now Russia’s continued escalation means it is time for the U.S. and our allies to up the ante by leveraging existing legal authorities and adding new laws to seize frozen assets and use the proceeds to support Ukraine.

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The U.S., Europe, and other allies have, of course, already implemented historic economic countermeasures against Russian aggression. That includes the latest sanctions from the U.S. that targeted Putin’s family, Russia’s largest financial institution, and its largest private bank. Congress further strengthened the blow by recently passing a new law revoking Russia’s preferred trade relations status, banning U.S. purchases of Russian oil and gas, and implementing a World War II–style lend-lease to Ukraine. Yet more must be done to increase pressure on Russia.

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One key additional step that would bolster Ukraine while damaging Russia would be to establish a fund or commission that uses Russian wealth to support Ukraine’s reconstruction. Typically, U.S. sanctions freeze rather than seize the assets of a targeted individual. By actually seizing and liquidating assets, the U.S. can use the funds for Ukraine and its people.

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The time has come to set aside our usual reluctance—for legal and diplomatic reasons—to take frozen U.S.-based property owned by a foreign state or individual and liquidate it for the benefit of victims. Efforts such as the Asset Seizure for Ukraine Reconstruction Act, recently introduced by Rep. Tom Malinowski, seek to liquidate Russian oligarchs’ assets and use the proceeds for postwar reconstruction and humanitarian and military aid. Some leading commentators have also called for the liquidation of frozen Russian central bank dollar reserves. These proposals raise important political and legal questions. Our view is that there is sufficient need, precedent, and authority for these kinds of measures if they’re done right. In short, we should use all legal tools in our arsenal.

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Of course, the impulse for fundamental justice must be balanced by the rule of law and due process. No matter how awful the behavior is, the U.S. court system does not allow easy seizure and transfer of property. That of the Russian state is protected by the legal doctrine of sovereign immunity and other domestic and international law; that of oligarchs is protected by mechanisms such as due process. There have been robust debates on these legal considerations, but we believe these critiques are soluble. For instance, Malinowski has offered to change the legislation as needed to protect due process, “including by incorporating a new judicial mechanism” for asset seizure.

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The United States is no stranger to seizures of ill-gotten gains through appropriate legal process. For instance, the Department of Justice prosecuted Equatorial Guinea’s Second Vice President Nguema Obiang for purchasing U.S. commodities with proceeds of corruption. The settlement forced Nguema Obiang to “relinquish assets worth an estimated $30 million and prevents Nguema Obiang from hiding other stolen money in the United States.” South Florida federal authorities also seized $450 million in bank accounts and other assets since targeting Venezuelan corruption in 2017.

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While the legality of new mechanisms must be carefully considered, it is essential that Ukrainian victims have a voice and tool for justice. That concern outweighs any historical or prudential reluctance to go to the limit to, in effect, start funding reparations from Russian property. We should look to models that have been utilized to address other extreme situations. Using precedents like the Justice for U.S. Victims of State Sponsored Terrorism Act, Congress could allow the courts to adjudicate and award damages to individual victims, extending jurisdiction to the full extent permitted by the Constitution.

To take another example, in 2012, Congress allowed frozen Iranian central bank assets to be used to satisfy judgments separately secured by victims of Iranian-sponsored terror. To address arguments that this was an unlawful property grab, Congress did not simply dictate liquidation of the property but established an elaborate mechanism of judicial review, which the U.S. Supreme Court ultimately upheld.

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Asset seizure legislation should be complemented by other measures to hold Russian actors accountable. For example, new legislation to increase beneficial ownership transparency and expose proxy owners of Russian wealth is also important. Such forms of sunlight make it harder for actors to conceal their ill-gotten gains and make it easier to facilitate the collection of admissible evidence.

It’s important to note that international coordination is key to addressing implementation gaps in sanctions and facilitating seizures across jurisdictions. Other countries are wrestling with these same questions about how to best support Ukraine and hold Russia accountable. For example, Canada has proposed legislation that “establishes a legal avenue to seize and repurpose assets frozen under any human rights and corruption-related sanctioning authorities (regardless of the country context) as reparations for the relevant crimes.” In the United Kingdom, as of early March, Cabinet minister Michael Gove was drawing up plans to seize property in the U.K. owned by Russian oligarchs associated with Putin.

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These strong new approaches are merited because the documented human rights abuses in Ukraine have been extreme. U.S. President Joe Biden has described it as genocide. These new directions are no substitute for other legal remedies, like war crime tribunals. But those are notoriously slow and may result in uneven accountability for those responsible for atrocities. We must do more to support Ukraine and its people now. The U.S. and allies must show Putin’s circle there are real consequences to invasions and human rights abuses. Seizing frozen assets is an important step in the right direction, and the U.S. has an opportunity to lead the charge. We hope other jurisdictions will follow U.S. leadership in this area, as they have in so many other respects.

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