Editor’s note: This article is part of Just Security’s series on reparation mechanisms in the context of Russia’s war against Ukraine.
Who pays for the terrible destruction wrought by war? Throughout history, reparations following interstate conflict have proven troublingly elusive for most victim States. Today, Ukraine faces this same challenge. As the conflict rages on, Ukraine is demanding accountability and reparations for the damage done by Russia’s manifestly illegal invasion. In November 2022, the United Nations General Assembly responded by resolving that Russia “must be held to account for any violations,” and that it “must bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury.” Ukraine has also secured the support of the Council of Europe for the establishment of a damage registry to accompany a yet-to-be-created compensation mechanism.
Even with widespread international support for war reparations, finding the money to fund them is difficult. Despite international pressure, Russia has made clear it has no intention of stopping the war or paying reparations. And because it maintains one of five permanent seats on the U.N. Security Council, Russia can veto any enforcement action by the U.N. As a result, any proposal for a mandatory compensation commission of the kind established by the Security Council in the wake of Iraq’s invasion of Kuwait would also be dead on arrival.
In the face of this impasse, many have argued for what seems like an obvious solution: simply seize the hundreds of billions of Russian central bank assets already frozen in the West and turn them over to Ukraine. And, indeed, the U.S. Senate Foreign Relations Committee has recently endorsed a plan to do just that. However, as we will explain, this seductive approach clearly violates international law. Taking such unlawful action—even as a response to Russia’s own illegal aggression—could lead sovereign States to think twice about putting assets in the United States in the future, thus reducing the dollar’s sway and limiting the potential bite of U.S. monetary sanctions. (Indeed, European finance ministers have raised concerns about even taxing the profits on the frozen assets, warning that doing so could undermine the euro as a store of value.) It could also risk unleashing extrajudicial expropriation of assets, including U.S. assets, by other countries around the world. The better answer, we argue here and in a forthcoming article in the Stanford Law Review, is to rely on legitimate, collective countermeasures to continue to freeze Russian central bank assets until Russia meets its obligation to pay reparations.
The Wrong Answer: Seizing Frozen Assets
Numerous diplomats, policymakers, and scholars have called for seizing the estimated $300 billion in Russian sovereign assets frozen in the wake of the 2022 invasion and transferring them to Ukraine as reparations. The United States appears poised to heed that call with the small fraction of Russian frozen assets subject to U.S. jurisdiction. But this approach would just respond to one international law violation with another.
Faced with a wrongdoer unwilling to pay and a victim with limited capacity for self-help, the widely held impulse to seize (rather than merely freeze) these assets and transfer them to Ukraine is understandable. Doing nothing, after all, would further undermine international law’s centuries-old principle that injured States have a rightful claim to reparation. Lawbreaking States’ obligation to pay reparations has been recognized repeatedly by international tribunals since at least 1928, when the Permanent Court of International Justice issued its seminal Factory at Chorzów decision. Yet apart from a handful of exceptions in the aftermaths of WWII and the Cold War, this obligation has rarely been enforced against recalcitrant States.
But seizing the frozen assets outright is not the answer. The principal reason is the doctrine of sovereign immunity, which demands that States and their assets enjoy immunity from other States’ jurisdiction and acts of execution or enforcement. (Similar concerns, it is worth noting, do not apply to seizure of the assets of Russian oligarchs, because those assets are privately held.)
The U.N. Convention on Jurisdictional Immunities of States and Their Property, understood by the International Court of Justice (ICJ) to “shed light” on customary sovereign-immunity rules, provides no exception that would permit the seizure of Russian central bank assets. Some commentators have sought to dodge the doctrine by arguing that sovereign immunity applies only in judicial proceedings, and thus has no application to unilateral executive seizure of assets (an approach taken by draft legislation in Congress). But this argument does not pass muster in view of the animating principles of sovereign immunity and the Convention’s broad definition of a “court” as “any organ of a State, however named, entitled to exercise judicial functions.” However institutionally veiled, sovereign asset seizures are of a judicial nature; they are premised on a finding of culpability or wrongfulness of the kind usually entrusted to the judiciary. In any case, cutting out courts in an attempt to avoid international legal constraints could introduce domestic constitutional concerns, although whether foreign sovereigns have due process rights is an open question.
Some proponents of the seize-and-transfer approach respond that seizure can be characterized as a “countermeasure”—an otherwise unlawful action that is only permissible because it is taken against another State for its internationally wrongful act and is meant to induce that target State to comply with the law. Here, these proponents argue, States can seize Russia’s assets even though doing so would normally be illegal because the seizures are meant to bring Russia into compliance with international law.
But this argument ignores a key requirement: lawful countermeasures must be, as far as possible, reversible in their effects. The whole point of countermeasures is to persuade the wrongdoing State to stop breaking the law. Once they do, the countermeasure is supposed to be reversed and everyone goes back to following the law. Outright asset seizures don’t fulfill this requirement. Once States seize Russia’s frozen assets, sell them off, and give them to Ukraine to rebuild, there will be nothing left to give back to Russia if and when it finally stops waging its illegal war and pays reparations. As a result, seizures cannot be lawful countermeasures, no matter how much we might wish they were. Sadly, then, the plan endorsed by the Senate Foreign Relations Committee would break international law—and it would do so for very little gain. As the draft legislation recognizes, only 1 to 2 percent of the frozen assets are subject to the jurisdiction of the United States.
(Part of) The Solution: Using Collective Countermeasures to Continue to Freeze the Assets
The solution instead is to rely on collective countermeasures to continue to freeze the Russian central bank assets. The ongoing freeze allows those assets to serve as leverage to bring Russia to the negotiating table, while preserving them for Ukraine’s use after the war is over.
This approach, too, begins with the frozen central bank assets. But it does not simply call for seizing them. Instead, States would continue to hold the assets in a frozen state. Since freezing assets, even for an extended period, is much more easily reversible and more defensible as compliance-inducing, it can be justified as a lawful countermeasure.
These freezes need not be lifted as soon as the war finally ends; instead, the assets can be frozen until Russia agrees to meet its obligation to provide reparations. True, countermeasures doctrine calls for reversing the action taken as a countermeasure once the internationally wrongful act has ceased. However, in this case, the failure to pay reparations is itself an unlawful act intertwined with Russia’s underlying aggression. Hence, we argue, assets may remain frozen unless and until Russia finally makes good on its international obligation to pay reparations for the harm done in its unlawful war.
In order for this to work, however, there is an important legal hurdle to clear: There are serious questions about whether third States can put in place countermeasures if they themselves have not been directly harmed. The International Law Commission’s Draft Articles on State Responsibility, which articulate most authoritatively the rules governing the invocation of countermeasures, are clear that injured States may put in place countermeasures against the States that harmed them. But the Draft Articles are explicitly agnostic with regard to a question critical to the viability of a multilateral countermeasures-based response to Russia’s aggression. This raises an important question for our approach (a question proponents of seizures must also address): Are countermeasures taken by third-party States who have not suffered direct material injury allowed?
The answer to this question matters, as the collective character of the asset freezes is critical to their efficacy. Ukraine itself has jurisdiction over only a fraction of the more than $300 billion pool of Russian assets frozen worldwide. Alone, Ukraine could do relatively little to vindicate its reparation claims.
Fortunately, the ILC’s Draft Articles did not foreclose the development of customary international law to permit collective countermeasures. And in fact, especially given the support for and deployment of such countermeasures by both Western and non-Western States in recent years (most notably against Syria and, of course, Russia), a survey of State practice since the adoption of the Draft Articles supports the conclusion that customary international law does allow for collective countermeasures against violations of obligations erga omnes, which are obligations arising “towards the international community as a whole.”
In fact, this “collectivist” approach has already begun to take hold in the cyber context. A discussion on collective countermeasures convened in 2022 under the auspices of the Oxford Process on International Law Protections in Cyberspace suggested two tiers of collective countermeasures, with those responsive to violations of erga omnes obligations seen by most participants as within the scope of existing countermeasures doctrine.
In light of these developments in State practice and opinio juris, it appears that collective countermeasures may, as a matter of contemporary customary international law, be employed not only to put an end to initial breaches of fundamental international norms, but also as a legitimate means of securing reparations for States that are victims of such breaches.
The Draft Articles themselves make clear that non-injured States may demand reparations when “acting in the interest of the injured party.” One recent ICJ decision corroborates this conclusion. In The Gambia v. Myanmar, the ICJ found that the Gambia had “standing to invoke the responsibility of Myanmar for the alleged breaches of its obligations,” rejecting Myanmar’s argument against the “entitlement of ‘non-injured’ States to claim reparation on behalf of alleged victims who are not their nationals” and disregarding Myanmar’s warning that allowing “non-injured” States to invoke its responsibility “would lead to a proliferation of disputes.”
That decision coheres with the ICJ’s broader recognition of States’ “legal interest” in violations of obligations erga omnes. Such violations–including the fundamental prohibition on the use of force enshrined in the U.N. Charter–contravene every State’s interests in upholding the international legal rights and values they embody. Absent an appeal to judicial or Security Council authority, collective countermeasures are the only viable means by which a non-materially injured State may give effect to these legal interests.
As with any internationally wrongful conduct, a violation of an obligation erga omnes places the responsible State “under an obligation to make full reparation.” The Draft Articles call this obligation the “immediate corollary” of a State’s responsibility–suggesting it is part and parcel of the erga omnes violation from which that responsibility arises, and thus susceptible to collective countermeasures within the narrow framework sketched above.
Some argue that even this limited role for collective countermeasures risks unleashing an escalatory spiral of States acting against each other in bad faith. But one might fear similar abuse, if only to a lesser degree, of States’ fairly settled prerogative to deploy first-party countermeasures. At the same time, a prohibition on collective countermeasures might impose its own costs by “depriv[ing] states of opportunities to engage together on their shared governance project” in order “to rally behind the violated norms and to insist that these norms apply equally to all states,” as Professor Monica Hakimi has argued.
Without resort to collective countermeasures, weaker States are likely to be left with little or no redress even for some of the most serious possible breaches of international law. The requirement of a violation of obligations erga omnes limits the use of collective countermeasures and helps to prevent the feared spiral of reprisal while still allowing such countermeasures to play a role in remedying this inegalitarian reality. Similar concerns motivate the proposal we make in our article to institutionalize collective countermeasures with the participation of the U.N. General Assembly.
Finally, it is worth noting that continuing to freeze the assets is entirely compatible with the European plan to set aside the profits from Russian frozen assets to help fund Ukraine. That plan, which preserves the frozen assets themselves, does not face the same concerns about reversibility that the plan to seize the assets altogether does.
A Role for the General Assembly
How, then, to translate collective countermeasures into reparations? We propose that the General Assembly play a central role in establishing a reparations mechanism relying on ongoing collective countermeasures by recommending the creation of a registry of frozen Russian sovereign assets—through an agreement between the U.N. and consenting States which specifies that States registering frozen assets agree to either transfer assets to a future U.N.-approved authority or reparations mechanism, or to unfreeze the assets upon a U.N. determination that Russia has otherwise satisfied its reparations obligation. The participating States could also agree to cooperate with international justice mechanisms such as the International Criminal Court or other international tribunals, should compensation be awarded as a result of the ongoing prosecutions.
This frozen asset registry, which could be established as a companion to the newly created registry of claims, would deliver Ukraine an invaluable bargaining chip in peace negotiations with Russia, rendering collective countermeasures more effective. Organizing each State’s countermeasures under a central authority would strengthen commitment to a particular theory of collective countermeasures and clarify the stakes for Russia, possibly increasing the likelihood that Russia would cooperate.
This approach provides some assurance that Russia will not have to negotiate preconditions of ending asset freezes with each individual State, but rather with a single entity, reducing transaction costs. This approach also increases the transparency and, relatedly, legitimacy of collective countermeasures. Because the agreement would stipulate no transfer of funds without Russian consent, the measures remain reversible, and a transparent asset registry paired with a damages registry assuages possible concerns that countermeasures against Russia could grow disproportionate to the damages. Finally, placing all the frozen assets under one umbrella further incentivizes Russia to consider agreeing to a reparations mechanism that would be funded by those assets.
Drawbacks and Response
Relying on collective countermeasures to secure reparations has one big drawback—Ukraine’s mounting needs are serious, and collective countermeasures do not promise immediate relief. We argue that it is nonetheless the best way forward. Ad hoc legislative proposals to seize Russian assets may provide money to Ukrainians now, but they undermine the very international legal legitimacy that has proven Ukraine’s greatest asset in the war.
Seizing assets also does little to confront a broader set of concerns about uncompensated international law violations for other victim States. Keeping this larger picture in view is not only important as a matter of equity and justice; it is also in the best interest of Ukraine, which must maintain unprecedented levels of global support for its ongoing self-defense and its efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done.
Our approach offers a replicable template for the pursuit of accountability in other contexts. By seeking to induce Russian compliance here, the international community could set an important precedent for a more robust approach to upholding the reparations obligation in the future. Collective countermeasures could then be used to recognize and relieve harms suffered due to future State violations of obligations erga omnes. Once created in the context of the current conflict, a collective countermeasures mechanism with the support of the General Assembly would be added to the menu of institutional options for obtaining reparations in future conflicts.
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This proposal does not deliver all that Ukraine and its allies wish. While collective countermeasures provide an invaluable tool for enabling States that are not a party to the conflict to support Ukraine’s demands for accountability for Russia’s violations of erga omnes obligations, applied properly they do not offer Ukrainians the immediate support they want and need. Russia’s assets will be indefinitely frozen, but Ukraine will not receive reparations unless and until Russia finally agrees to a reparations scheme. Yet a system of collective countermeasures, institutionalized through the U.N., can create pressure to bring Russia to the table. And by relying on and developing a doctrine that could be employed by other States in the future, rather than depending on one-off (and illegal) legislative proposals to seize Russian assets, it charts a path not only for repairing the harms suffered by Ukraine but for repairing the losses suffered by any other State subjected to an unlawful war in the future.
Authors’ Note: This article draws on a forthcoming article in the Stanford Law Review: War Reparations: The Case for Countermeasures.