Russian officials ‘expressing disgust with retreat’ says expert
President Joe Biden has been urged to punish Vladimir Putin by unleashing the seizure of Russian assets. Neil Goteiner, American lawyer and partner at the national law firm Farella Braun + Martel and David Hofmayer, a Farella associate, argued Russia must be made to pay “for its wanton destruction of Ukraine”.
They noted the World Bank’s report in April which said the invasion of Ukraine is forecast to shrink its economy by an estimated 45.1 percent in 2022.
Both lawyers then questioned why Russia should not be forced to “compensate Ukraine for the damage”, and suggested the US confiscate frozen assets despite fears from officials that other countries would then hesitate to leave assets in the US.
They said: “Is confiscation legal? And is it a good idea? We think the answer to both questions is yes.
“But we believe that policymakers should focus on Russian sovereign assets rather than those of individual Russians.
“There are more sovereign assets at issue; they are more liquid; and there is a clearer legal and moral connection between them and Russia’s invasion.”
Lawyers said Russia must be made to pay ‘for its wanton destruction of Ukraine’
Neil Goteiner and David Hofmayer said the US must confiscate assets
Writing in Politico, Mr Goteiner and Mr Hofmayer referenced law professors Lawrence Tribe and Philip Zelikow who argued that in the US, confiscation could already be authorised by statute.
Mr Tribe focused on the President’s authority under US law, specifically the International Emergency Economic Powers Act (IEEPA), to “direct and compel, nullify, void [or] prohibit … any … holding, use, transfer, or exercis[e] … of … any right, power, or privilege with respect to … any property in which any foreign country … has any interest,” once declaring an emergency under the act.
Mr Zelikow’s analysis centres primarily in the international law concept of “countermeasures,” which may compel a wrongful state actor to compensate its victims.
While they referenced other experts who disagreed, Mr Goteiner and Mr Hofmayer said the “most feasible confiscation scenarios probably hinge on broadening executive authority”, which they noted “would also be a target for challenge in US courts”.
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‘There is a clearer legal and moral connection between (liquid assets) and Russia’s invasion’
‘With a focus on restitution, it’s only right that Russia pay for the harm it has wrought’
Mr Goteiner and Mr Hofmayer then defended confiscation of Russian assets from critics who argue “it’s just plain bad policy”.
They suggested using “Congressional findings as to Russia’s wrongdoing in this conflict, bolstered by comparable international determinations in the UN and the International Court of Justice” to ease concerns about skipping judicial due process.
Mr Goteiner and Mr Hofmayer concluded by saying: “Both the practical and moral case for confiscation is strong.
“With a focus on restitution, it’s only right that Russia pay for the harm it has wrought and the assets it has criminally expropriated from Ukraine.
“So far, the US and other powers have sensibly self-regulated their military interventions, but the result is that Ukraine is being ground down by the Russian war machine.
“The global community must act aggressively, using all the economic and legal tools at its disposal. It is time to act, not compromise.”
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Ceasefire warned there is no roadmap based on international law forcing Russia to pay
In June, the British thinktank Ceasefire warned calls for Russia to be required to pay reparations for damages caused by its invasion is not backed by a coherent roadmap based on international law.
They noted it is “remarkable” that plans are lagging in comparison with the number of war crimes investigations being launched, even though history suggests the numbers of Russian soldiers or politicians likely to be prosecuted is low.
Ceasefire’s director, Mark Lattimer, proposed a UN general assembly or multilateral mechanism to take charge of administering reparations to civilian claimants, with the UK and other national governments using national and international law to put sanctions on assets to make Russia pay.
He said: “The legal obligation to pay reparations falls most heavily on Russia, but self-evidently it will not pay of its own accord.
“The example of the Iran-US claims tribunal set up in the wake of the US embassy hostage crisis shows, however, that sanctioned assets can be used as leverage to ensure that reparations are paid – or in the alternative those assets could be used to pay reparations directly.”
Putin will meet with Xi Jinping in Uzbekistan this week to discuss Ukraine
It comes as Putin prepares to meet with Chinese President Xi Jinping in Uzbekistan this week.
Mr Xi and Putin will discuss the war in Ukraine and other “international and regional topics” at their meeting, according to the Kremlin.
It marks the first time the Chinese President will go abroad since the start of the coronavirus pandemic in December 2019.
Mr Xi begins his three-day trip in Kazakhstan on Wednesday, and will then meet Putin on Thursday at the Shanghai Cooperation Organisation (SCO) Summit in Samarkand, which will run from September 15 to September 16.