Reportercast October 2023 in Kyiv with Andrii Mikheiev: on asset confiscations and international law

A podcast episode recorded in Kyiv on October 17 on the sidelines of a conference on the human rights abuses in Ukraine and Syria, organised by SUN (The Syria Ukraine Network), an NGO based in the US.

Andrii Mikheiev is an international law expert with the International Center for Ukrainian Victory, a Kyiv-based NGO. He tells host Matei Rosca about the struggle Ukraine is facing in recovering its material losses from Russia, the inadequacies of international law and the UN system in dealing with a war of aggression and with claims for reparations and war crimes prosecutions, and he paints a picture of the way forward as campaigners, Ukrainian leaders and Western supporters work together to find solutions.

Mikheiev also gives his view on the war in general, the plans for after the war, and makes a rather bleak assessment of the Russian opposition, calling it too disorganised to cope with the scale of the problem.

This episode was the last of Season 2 – we are taking a break over the winter and will return in early 2024. It is embedded below in video and audio, and also available from all major platforms — Amazon Music, Spotify, Apple Podcasts, Google Podcasts, and Youtube. Alternatively, you may listen directly from Acast, as well as use the RSS feed code to add the stream to your preferred podcast app.

After publication, Andrii wrote back to ask that the post is updated with his written summary of his position on the matter of confiscations – just in case some readers aren’t able to listen to the whole episode. Here it is:

“Despite the fact that a lot of distinguished experts are skeptical regarding opportunities to confiscate Russian sovereign assets, the ways actually exist and have solid legal justification. The sovereign immunity of states which protects their property from seizure and alienation by foreign states is actually applied strictly to confiscation through court decisions. It does not cover orders from executive authorities on confiscation of foreign state property. The language of existing international convention directly provides so. Also, Russian actions obviously violate imperative rules of international law (UN Charter prohibitions of use of force, key rules and principles of international humanitarian law and human rights law, ICJ rulings to Russia to cease military intervention etc.). Moreover, as of now actual damages inflicted by Russia are estimated in amount of USD 425 billion. Therefore, confiscation would be the lawful countermeasure applied by Ukraine and other third states regarding Russia, until it ceases continuing violations of international law. Freezing of assets which has already taken place is also, actually, a countermeasure. However, the reality shows that it is not enough and adequate compared with violations which have been committed by Russian Federation.”

“Moreover, confiscation would also be the justified act of self-defense under Article 51 of the UN Charter. Impact of Russian aggression on Ukrainian economy and prior world practice also show that self-defense may not be performed just as direct military response but also as economic counter-reaction and confiscation would also be fit within self-defense concept.”

“Therefore, we would like to encourage our partners, especially the European Union, to be more decisive in this regard, as confiscation of Russia’s Central Bank assets is much more legitimate than may seem. Arguments regarding this have been provided in studies and researches of prominent and reputable researchers and think- tanks. Such measures, as collection of profits from frozen assets or collection of taxes from such profits and their transferring to Ukraine, proposed by EU experts, would be great first steps but should not be considered as alternative to the full confiscation. We should remember that even if we confiscate all USD 300 bln of Russian money, they will not cover all the damages and losses suffered by Ukraine and Ukrainian partners as of now. Moreover, the volume of damages tends to increase, as war is far from its end.”

The article was updated with Mikheiev’s statement on October 31, 2023.