Opinion | Unwavering Strategies to Ensure Russia Pays for Invading Ukraine

Volodymyr Zelensky is set to visit Washington this week to express gratitude to the United States for its generosity, while also making a request for an additional $24 billion. This amount aligns with the Biden administration’s appeal to Congress for more military and humanitarian aid for Ukraine, ultimately bringing the total American aid to $135 billion. Since the beginning of the war, the US has been providing approximately $223 million per day. This figure has been calculated by one source according to their analysis.

Perhaps it is time to explore new funding sources before the US resources are depleted, and one potential candidate is Russia.

Since Russia’s invasion of Ukraine in February 2022, approximately $300 billion of Russian central bank assets have been frozen by the United States and its democratic partners. This accounts for nearly half of the Kremlin’s foreign currency and gold reserves. Many have argued that these funds should be transferred to Ukraine as an act of justice and as a deterrent against future aggression. According to former Treasury secretary Larry Summers, it is unreasonable for “bank robbers to expect banks to honor their safe deposit boxes.”

However, the Biden administration has opposed this idea, with Treasury Secretary Janet Yellen stating in May 2022 that it would not be legal for the US government to seize Russia’s assets. The Economist magazine has voiced concerns that such actions would violate international law and potentially harm American economic interests as countries seek to reduce their dependence on the US dollar.

However, these objections are weak and lacking substance. A comprehensive 184-page report has been circulated among journalists, government officials, and NGO leaders by the Renew Democracy Initiative, shedding light on this matter.

The report’s lead author is Larry Tribe, a renowned liberal law professor from Harvard University. Despite our disagreements on various topics, we share a common perspective on this issue. [Full disclosure: I am on the advisory board of the Renew Democracy Initiative but had no involvement in the report’s creation or publication.] The report concludes that the president possesses significant authority under the 1977 International Emergency Economic Powers Act (I.E.E.P.A.) to transfer Russia’s frozen assets to Ukraine.

Tribe and his colleagues explain that I.E.E.P.A. clearly empowers the president to investigate, block, regulate, direct, compel, nullify, void, prevent, or prohibit property transfers between entities. This authority extends to any rights, powers, or privileges associated with property in which a foreign country has an interest and falls under the jurisdiction of the United States. Previous presidents, such as George H.W. Bush, have exercised this authority to freeze Iraq’s assets after its invasion of Kuwait and ultimately transfer them for the benefit of victims of Saddam Hussein’s aggression via the United Nations Compensation Commission.

What about the argument of Russia’s “sovereign immunity,” which asserts that a state cannot be subject to foreign court judgments or penalties? This argument, sometimes used against transferring Russia’s assets to Ukraine, is irrelevant. As Tribe explained in an email, sovereign immunity only applies to judicial proceedings and does not limit a country’s foreign policy actions taken by the executive or legislative branches. It is baseless to argue that Russia can violate Ukraine’s sovereignty while invoking its own sovereignty as a shield.

The report highlights the well-established doctrine of “countermeasures” in international law, which permits actions that may otherwise violate international law when responding to another state’s internationally wrongful acts. The principle is straightforward: Violators of international law cannot dictate or veto the penalties imposed for their transgressions.

Lastly, concerns have been raised about potential long-term economic consequences for the United States if other countries begin to fear that their funds could also be seized. When I posed this argument to Larry Summers, he acknowledged the risk of unilateral US action without coordination among European countries, where a majority of Russia’s frozen funds are currently held. Summers suggests that the solution lies in multilateral action involving major currencies. He posed the question: If all major currencies were involved, where else could people move their money?

Summers is a staunch advocate for transferring funds to Ukraine. He argues that the Rubicon has already been crossed by freezing Russia’s assets and labeling Vladimir Putin a war criminal. It is inconceivable that these funds would be unfrozen for any reason other than Ukraine’s reconstruction. So why not proceed with this action now, when additional funding could accelerate Ukraine’s victory, provide aid to its people amid ongoing attacks, and send a powerful message to the Kremlin and other potential aggressors that invading carries a financial cost?

Although the Biden administration has demonstrated a commendable commitment to Ukraine, their actions often come late in the game. Utilizing Russia’s assets to assist in defeating Russia is crucial to this effort. The moral argument is compelling, the legal case is clear, and the political moment is ripe.