Opinion column published in Le Monde on 16 April 2024. Translation by For Ukraine, for their Freedom and Ours!
For further information, the translation of a legal study by Martine Jodeau, a legal expert, can be consulted here:
Citation
JODEAU Martine, « Du gel à la confiscation des avoirs de la Fédération de Russie, Regard des institutions européennes et propositions de contre-mesure fondée sur le droit international coutumier », Revue de l'Union Européenne [en ligne], avril 2024, nº 677, p. 209-214, www.dalloz-revues.fr/Revue_de_l_Union_europeenne-cover-124804.htm
Abstract : The institutions of the states that host frozen Russian sovereign wealth funds have called for urgent legal tools to be used to establish and secure the internationally coordinated confiscation of these funds for the benefit of Ukraine. Customary international law on "responsibility of States for internationally wrongful acts" would provide a legal justification for the use of the consequential measure of confiscation. Customary law, expressly recognized in the Statute of the International Court of Justice as a source of law and codified on this subject by the United Nations International Law Commission, appears to be a response to the concern for legal certainty of the proposed countermeasure. This is what we seek to establish in this note.
We welcome the recent initiative of the European Council, which has agreed to tax the interest generated by Russian public capital tied up in various European countries. This tax, 90% of which is earmarked for the purchase of arms for Ukraine, is a first step. But this decision seems very modest when you compare the billion euros promised to the Ukrainians with the 200 billion euros in assets that the Russian national bank has deposited in European financial establishments (out of a total of 300 billion euros invested outside Russia).
Ukraine would have immediate use of this capital to begin repairing the damage it has suffered as a result of the destruction of its civilian infrastructure, which has been systematically targeted by Russian missiles. The reconstruction of hospitals, schools, universities and power stations cannot wait for the indeterminate end of hostilities.
How can the finances of the Ukrainian state, whose revenues have been cut by the decline in economic activity, pay the pensions owed to war invalids, widows and orphans, who number in the hundreds of thousands? How can we fund the long and costly treatment of the countless wounded? How can we invest in rebuilding the hundreds of thousands of homes destroyed? How can we continue the education and university training of the generation that will have to rebuild Ukraine after the war?
The confiscation of Russian public assets would constitute an advance on the compensation that the aggressor would ultimately have to pay. The damage caused by the Russian Federation on Ukrainian territory has been estimated by the World Bank at nearly 450 billion euros to date. This is already much more than the frozen Russian assets.
While Emmanuel Macron has called for no a priori limits to be set on the actions of Ukraine's allies, why not implement, as part of reparations, confiscation measures that are perfectly legitimate under customary international law? A document entitled ‘Responsibility of States for Internationally Wrongful Acts’ was drawn up by the International Law Commission of the United Nations. It states that a State that has suffered damage caused by another State may take countermeasures, such as confiscating the aggressor's assets, to oblige the aggressor to make reparation for the damage it has caused. It is this same customary law that constitutes a source of law, enshrined in the Statute of the International Court of Justice (ICJ), which it can apply in disputes between states.
The Russian aggression has been unanimously recognised as unlawful and condemned by the UN General Assembly ( Resolution of 2 March 2022), the ICJ (16 March 2022), the Council of Europe, the European Union and the European Court of Human Rights. The freezing of the Russian Central Bank's assets is one of the thirteen economic sanctions imposed on the Russian Federation, which has not been challenged in court. From a purely legal point of view, it is up to Ukraine, recognised as the wronged State, to claim compensation from Russia for the damage it has suffered. Ukraine's formal request to confiscate the immobilised Russian public assets is the necessary precondition for its execution, with the assistance of the States holding the assets. Switzerland and the United Kingdom have begun to individually explore ways of implementing such a confiscation.
Why are the European Union and its Member States delaying implementing this procedure, which is as urgent as it is legitimate? Is it fear of the Kremlin's wrath? Let's not forget that Russia has not hesitated, in direct violation of international law, to appropriate European companies at low cost, forcing them to sell their assets to the Russian state or to Putin's followers. What more can Putin's regime, which has declared itself at war with ‘the West’, do? Is it because confiscation measures might frighten off other states that have entrusted us with their assets? The argument does not hold water, because only an aggressor state can, under the terms of the law, be targeted in this way by a counter-measure taken for the benefit of an aggressed state.
Last but not least, how can we explain to the people of France and Europe that no measure is being ruled out and that we are going to have to increase our involvement, if we do not commit ourselves to an action that is as simple as it is fair: the aggressor must pay to make amends for his crimes, not the taxpayers of the countries allied with Ukraine.
Cooperation is obviously needed not only between the Member States of the European Union, but also between the G7 countries that hold Russian assets. However, given the urgency of the situation, France, which holds €19bn of Russian assets, can and must set an example. This is the purpose of the cross-party draft resolution tabled in the National Assembly by Benjamin Haddad and Julien Bayou.
It is imperative that our country, at Ukraine's request, takes all the necessary steps to confiscate Russian public assets deposited in France. Helping the Ukrainian state to confiscate these assets would be an act of affirmation of international law. Indirectly, it would also help to reduce the Ukrainian government's budget for reconstruction, at a time when it has to cover the military expenditure essential to the fight for its freedom... and ours.